Sarah Hanley

The Jurisprudence of the Arrêts":
Marital Union, Civil Society, and State
Formation in France, 1550-1650

During the 1500s and 1600s when state building in France depended on the government's ability to staff administrative and judicial offices, prime candidates emerged from the famous law schools. Steeped in new research methods favoring a documentary base, jurists focused legal studies on the French past, rather than a Roman one, and fostered historical and comparative views of society, law, and nation. Searching in archives for customs and laws, they wrote histories tracing the development of French institutions, including the Parlement of Paris, and devised civic rituals to articulate French constitutional precepts in that court. ¹ Practicing law as well, they collected "notable arrêts" (judicial decisions) on questions of law, advanced legal theories and legislative projects, and facilitated the circulation of legal knowledge within a general public caught up in judicial activism born of social change and political necessity. By challenging operative facets of two great legal systems in the western world, Roman law and Canon law, and by amending French Customary law, they developed a system of "French jurisprudence" and legally framed a "civil society" that underwrote the claim to political sovereignty as a nation. ²
1

     All the while families participated in the French system of "venality": purchase of offices from the government. Unlike others in Europe this was a venal-hereditary system where purchased offices (treated as immoveables) were transformed into heritable family property transmitted to heirs, male and female.³ From the sale of offices, state and family profited. The government obtained annual revenue, the ability to extract loans from incumbents, and professional service. The officeholding families (men and women) gained financially, accrued coveted honors, and expedited social mobility.⁴ From within the judiciary, where men who exercised prominent charges into a third generation attained noble status for the family, there emerged a distinguished professional "civil nobility" (of the robe) active in government.⁵ And within judicial family networks, women and men exercised powerful advisory and patronage roles in government circles.⁶ As major investors in many kinds of expensive officeholding ventures, characterized by 1610 as "office mania,"⁷ ⁷ families sought parental control of marital unions to consolidate assets, extend networks, direct inheritance, and manage social reproduction. Vocal adherants of cultural singularity, French ways versus those foreign, jurists engaged in protracted family-state negotiations to reform traditional marital policy and achieve professional repute for a French legal system.
2

     This study attempts to fill a serious gap in French cultural and legal history by tracing an early period, 1550s-1650s, in the development of a system of jurisprudence based on a body of French marital law made known to a general public directly affected and actively involved.⁸ First, in French courts deemed "sovereign" the présidents and conseillers (judges) who pronounced "arrêts" (judicial decisions) on marital matters, along with the avocats (lawyers) who wrote legal briefs (factums) and pleaded in court, began to evade judicial secrecy, publish their personal notes on judicial decisions in French, and sell them on the open market. Second, once jurists treated "notable arrêts" (printed and given to litigants) as legal precedents followed when French Customary law (called "common law") was silent,⁹ or when pertinent royal edicts did not exist, kings (and governments) moved to give some of them statutory form. Third, the notable arrêts (case law) and royal edicts (statutory law) that regulated marital affairs, hence family-state interests, constituted what I have identified as a "French Marital Law Compact" unprecedented in Europe during this era.¹⁰ Fourth, the attendant shift from judicial secrecy to judicial publicity, which fueled a public quest for legal information, opened up routes for social action that spurred public recognition of "French Jurisprudence," membership in a shared "civil society," and patriotic notions of a French "nation" linguistically, culturally, and juridically distinct from others.¹¹ Countering hierarchical models of political authority, including the misleading presentist concept of "absolutism,"¹² this French pattern of legal moves from the social rim (jurists and litigants) to the statutory center (king and government) posits a relational model of public power negotiated to the strains of a new national legal theme.
3

The National Legal Theme

During the mid-1500s, when the language of law practice officially became French,¹³ some jurists began to evade the professional protocol on judicial secrecy that frowned on the publication of comments on judicial decisions including legal reasoning behind them. Collecting arrêts cast as "notable," they voiced an audacious national legal theme that successors put into law practice and trumpeted to the public at large. That is, the French state (not the Catholic church) has ultimate cognizance of marital acts, which are legal contracts connected with the public good; therefore, French law practiced in civil courts decides disputed marital cases (not Canon law applied in church courts, or Roman law applied in a foreign state now defunct). Certainly not through ineptness or inertia on the part of the church,¹⁴ but by aggressive juridical action nationally directed, the French made legal cognizance of marital matters central to modern family and state formation.
4

     As early as the 1540s, Gilles Le Maistre, eminent judge in the Parlement of Paris, kept personal notes (as did many jurists) on important judicial decisions including those pronounced on marital matters. Observing the protocol on judicial secrecy (at least partially), Le Maistre did not publish those notes in French. After his death (1562), however, a colleague printed the valuable collection, Notable Decisions (1566); and from 1576 to 1662, as judicial secrecy waned and was abandoned, that book was reprinted eight times.¹⁵ Sketching a national legal theme, Le Maistre recalled but modified the Roman law stance and impugned outright Canon law rubrics on marriage. Whereas Roman law had subscribed to strict paternal consent, later to paternal and couple consent for a valid marriage,¹⁶ Canon law (inspired by Gratian's influential Decretum, c. 1140) deviated from this by stipulating only the uncoerced consent of the couple exchanged verbally (present or future tense) and witnessed.¹⁷ For centuries, however, that procedurally vague church policy on "marriage promises," which failed to distinguish betrothal from marriage, generated legal disputes. Moreover, church judges ruling in ecclesiastical courts confounded the problem by applying a legally abstract term, "clandestine marriage," to designate not a marriage (witnessed and consummated) but a betrothal (unwitnessed and consummated) that was reparable rather than illegal.¹⁸ Amid these medieval remnants of legal confusion, which provoked the modern professional scorn of jurists in France, as well as the enmity of writers and reformers in Europe,¹⁹ Le Maistre staked out grounds for a French marital policy.
5

     First, Le Maistre set forth a French legal definition of "clandestine marriage" attuned to a national cultural past. He defines a marriage act that lacks either couple consent (as required by Canon law) or parental consent (not just paternal consent as in Roman law) as "clandestine." Then he judges "clandestine marriage" (as redefined) "illegal" in France and subject to nullification. As he says, "In this situation [clandestinity], Canon law is no longer followed in France." Accordingly, if church judges (officiels) in ecclesiastical courts (officialités) accept clandestine unions, French courts may invoke the appeal procedure, appel comme d'abus (appeal for abuse of jurisdiction) and move those cases into civil courts for adjudication under French law. Second, Le Maistre refashioned the Roman law capital crime of raptus into a French rapt charge, which he attached to clandestinity.²⁰ Whereas the Roman crime focused on damages to an individual violated by abduction and forced marriage without consent,²¹ the French charge concentrates on damages to a whole family injured by covert removal of a son or daughter from the family, or by covert entry of a person into a family, its lineage, and its property holdings. To bolster this national legal stand, he referred to law practice in France.
6

     As Le Maistre's collection of judicial decisions (1540s-early 1550s) shows, French judges (Le Maistre included) had been declaring marital acts lacking parental consent "clandestine" and "illegal" (contrary to Canon law) for some time; in addition, they had been assessing disinheritance penalties (contravening French Customary law)--all in lieu of royal edicts to that effect. In one of the citations, Lizian-Tinteniac--Orvaux (1541), the arrêt of a French court (acting on a parental complaint against a son) nullified a clandestine marriage. In another arrêt of 1555 (pronounced by Le Maistre) an offending daughter was deprived of her dowry and inheritance. Insisting on parental consent for a valid marriage, Le Maistre alleged that "the opinion of jurists [requiring parental consent] is and always has been recognized and held in France."²² By substituting French case law rulings for Canon law ones, admitting the lingering "spirit" of Roman law subject to major French modifications, professionally linking Roman law jurists with modern French ones, and amending (through practice) French Customary law, Le Maistre intended to legitimize a course of action already under-way: the removal of marital affairs from church courts into a civil law arena framed by French law.
7

     Le Maistre was one of the pioneering collectors of notable arrêts who successors like Julien Brodeau in the mid-1600s called the "Arrestographes" and credited with building "our French Jurisprudence."²³ Calibrating law and culture, Le Maistre redefined marital rules in two ways. First, he provided a legally French concrete definition of "clandestine marriage" that made parental consent an obligatory part of a new parental-couple consensual equation necessary for a valid marriage. In addition he approved parental disinheritance of culprits as a penalty. His strategic shift from Roman paternal consent (the father) to French parental consent (the father and mother) reflected dictates of a French inheritance custom unknown in Roman law: the designation of family property descending to husband and to wife from each natal "source (estoc)" as separate and inalienable propres necessarily transmitted from each of them to legitimate children.²⁴ In order to effect disinheritance, therefore, the two parents (representing two sets of propres) would have to assign the penalty, and French Customary law (directing such property to children) would have to be amended. Second, Le Maistre recommended the attachment of a French crime of rapt (injury to a whole family by the covert removal of a member without parental say) to clandestinity charges. Declaring "clandestine marriage" illegal in French venues (unlike in church ones), he urged French courts to nullify them. Modifying Roman law, displacing Canon law, and amending Customary law, Le Maistre called for a French marital law policy that observed cultural norms while contending with social and political change. In this precarious French legal arena, he did not stand alone.
8

     Around 1550 Jean de Coras, judge in the Parlement of Toulouse, investigating judge (rapporteur) in a famous marital imposture case, Guerredu Tilh (1560), and distinguished European scholar,²⁵ stated the same legal theme while actively lobbying the government (as were colleagues) for a French statute mandating parental consent for a valid marriage. Although Coras composed a collection of judicial decisions in Latin, he had not published the work in French before his untimely death (1572).²⁶ In the meantime, he skirted the secrecy protocol by printing in French a short tract criticizing church policy, On Clandestine Marriages (1557), which was reprinted four times from 1572 to 1618. And three years later, while commenting on Guerre--du Tilh (1560), he proposed a French rapt charge.²⁷ Admiring the spirit of Roman law but rejecting Canon law, he offered a French alternative.
9

     Coras argues in Clandestine Marriages that medieval church policy, which departed from earlier Roman law precepts, disturbs the "public good" in France today. The problem, he avows, lies with medieval Canon law, which requires only couple consent, not parental consent, and with church courts, which often approve marriages of majors and minors conducted secretly. He sets forth complaints. In ecclesiastical courts church judges allow couple consent to be obtained after the secret marriage and its consummation, even in cases of seduction, and worse, abduction; and they routinely ignore parental consent, or seek it only belatedly. The result: church policy on marriage encourages the nefarious actions of abductors and seducers, then silences the victims who are urged to regularize the marriage even if parents object. Supposedly based on individual "free choice" and "mutual affection" (a reference to Gratian's Canon law rubrics), clandestine unions actually result from reckless passion, or bad judgment, and damage parents, families, and society. It is the duty of the king, Coras holds, to rectify this serious social problem by promulgating a French edict declaring parental consent (prior to nuptials) obligatory for a valid marriage. Still writing this tract when the king issued the first French marital edict in 1557 (o.s. 1556), he added praise for the new statute and commended the king for heeding legal advice repeatedly given by eminent jurists.²⁸ Several years later, while pondering Guerre--du Tilh (1560) on marital imposture, an admittedly bizarre type of clandestinity, Coras thought a French rapt charge (covert invasion of a family without parental consent) should accompany that of clandestinity.²⁹ This juridical stance on marital matters denigrated Canon law as an instigator of pernicious consequences injurious to family and society. It recalled the spirit, albeit not the letter, of Roman law. And it insisted on the sovereignty of French law concerned with the public good. This stance was confirmed by some cohorts.
10

     The jurisconsult, Jean Papon, published Collection of Notable Arrêts (1565) in French during his lifetime, a book swiftly sold out and reprinted three times from 1566 to 1569.³⁰ Bearing witness to the erosion of judicial secrecy in progress, Papon (who read works of Le Maistre and Coras) offered a tutorial on French law practice. Addressing the reader, Papon calls attention to "the great authority of arrêts" pronounced "solemnly" in the Parlement of Paris with judges garbed in "red robes" and "all chambers assembled"; and he explains that "the arrêt thus given is followed [thereafter] and becomes a precedent (prejugé) for all similar cases." For that reason those who attend solemn sessions in the Parlement of Paris, where notable arrêts are "alleged as law," learn a great deal about the "interpretation of the law."³¹ Acting as an "adjunct (assesseur) to the judge," therefore, he has collected notable decisions in this book "to instruct" others in "ten thousand secrets for the proper resolution of all well judged cases." Since these "secrets" are not learned in "law schools" where students merely "read the law," this collection will render valuable "service to the public."³² In Papon's view one could not learn the law merely by reading Canon law texts, relying on the letter of Roman law, or reiterating French Customary law (as redacted). Rather, legal learning depended on access to precedent-setting French arrêts too long kept secret.
11

     Reminding readers that some French judges have refused to abide by Canon law in marital affairs, Papon legitimates that stance by turning to history. In medieval times, he says, the Catholic church suppressed earlier Roman law precepts that (at least) favored paternal (if not parental) consent and also charged rapt in aggravated instances. By invoking Canon law (Gratian's rubrics), the church wrongfully gave "liberty to family children [enfants de famille, legitimate issue] to marry . . . without the consent and against the will of the father and mother." Recalling the "spirit" of Roman law, therefore, French judges corrected that church wrong by issuing no-table arrêts in French courts that defined marriages made without parental consent "clandestine" and "illegal" (in lieu of a French statute) and allowed parents to punish those illicit acts with disinheritance (contrary to Customary law).³³ To demonstrate how French law practice (case law) diverged from Canon law, modified Roman law, and amended Customary law, he offered instructive decisions.
12

     Papon cites notable judicial decisions (1520-1556) that defined clandestine marriages as unions lacking parental consent and penalized them before the first French marital edict was issued in 1557. In one arrêt of 1553, the French court ordered a son who married without parental consent to return the donation (estate share as gift) given by his father (an inheritance penalty unknown in French Customary law).³⁴ In another arrêt of 1555 (pronounced by Le Maistre), the French court ruled a daughter who married without the consent of her father (mother deceased) lost dowry and inheritance rights (contrary to Customary law) even though the father before his death accepted her husband (which in Roman law would have legalized the marriage).³⁵ Such decisions, he maintains, served as "perpetual maxims," or precedents, "alleged as law."³⁶ Placing prominent legal systems on a historical spectrum--Roman law, Canon law, French law--Papon reiterates that in France "Canon law has not been observed for some time" and that Roman law, the product of a "foreign state now extinct," "is not followed in this kingdom" except in "spirit" as befits "written reason."³⁷ Today in "modern" France, he says, "our [French] civil laws" (notable arrêts and the new Edict of 1557) rule on clandestine marriages and exact disinheritance penalties.³⁸ Within this prescient legal theme voiced by Le Maistre, Coras, and Papon lay the nub of social and political change and the legal response (arrêts and statutes) interposed in the name of cultural singularity. 13

     Attained through years of determined lobbying by jurists (not by a precipitous reaction of the king to one clandestinity case),³⁹ the first French marital Edict of 1557 took only some of the steps long recommended by jurists. Concerned about the way marriages are "contracted," a matter of "public integrity inseparable from public utility," the Edict of 1557 demands that minors (but not majors) obtain parental consent (father and mother) for a valid marriage; it significantly raises the customary age of majority from twenty to thirty years for men, seventeen to twenty-five years for women; and it suggests that children of majority age should seek parental "advice and counsel" (not consent). Second, to legitimate a disinheritance penalty, the edict permits parents to sue errant children for clandestinity in civil courts and deprive them of "the conventions set forth in marriage contracts, or by benefit of laws and customs;" that is, it allows parents to retrieve family assets given to culprits, or block future access to them. Finally, the punishment of accomplices is left to the discretion of civil judges. Stating that no one henceforth may allege contrary "laws and customs" to evade these regulations,⁴⁰ the edict publicly admits a serious departure from tradition.
14

     No doubt this first marital edict was innovative. It overruled Canon law (requiring only couple consent), modified Roman law (focused on paternal consent), and amended French inheritance custom (directing parents to endow children). All told, by tying couple consent to parental consent for minors (the most sure witness) and parental consent to family assets (the deterrant), the edict moved to suppress the troublesome medieval church policy that accepted the custom of verbal "marriage promises" (witnessed or not). In addition, the radical extension of minority status (by eight years for women, ten years for men) effectively collapsed the categories of minority and majority for those of marriageable age.That this first edict (focused on minors) was limited is also apparent. It did not command judges to nullify clandestine marriages or to disinherit culprits, it did not attach a French rapt charge (capital crime) to the clandestinity allegation, and it did not clearly regulate unions of newly defined majors. On the cusp of social and legal change, these juridical limitations suggest the presence of internal arguments over specific provisions, as well as general debates about the authority of French civil law (culturally and nationally construed) to nullify marriage vows made in accord with Canon law and Trent (purportedly sacramental and universal). Even so, the more radical trajectory of reform already evident in case law was heralded by Barnabé Le Vest, distinguished judge, Parlement of Paris, whose notes reported an important decision, Constard-Liguier (1554), given before the Edict of 1557 appeared. That arrêt declared the clandestine marriage (lacking parental consent) "illicit, against the law, and against the Arrêts of the said Court [Parlement of Paris] heretofore given," invoked a rapt charge, and then meted out to perpetrators and accomplices not the death penalty entailed but "public reparations for the crime of rapt" (that is, fines, banishment).⁴¹ Limitations aside, the Edict of 1557, which covered young people of marriageable age, paved the way for a series of arrêts and statutes that soon produced a Marital Law Compact with national credentials.
15

     Given the extraordinary change of venue attempted in France after 1557, two legal systems with conflicting rules on marital matters, as well as competing courts and professional personnel, began to jostle for place. At stake was the traditional church policy derived from medieval Canon law (since Gratian's Decretum) and reaffirmed by the Council of Trent (1545-1563). Although church delegates from European states debated the controversial consent issue at the Council of Trent in 1547 and again in 1562, the majority rejected the French agenda and voted in 1563 to confirm Canon law privileging couple consent and to recommend, but not require, parental consent for a valid marriage. Turning to procedures instead, they attempted only to censure secrecy (at all ages) by directing officiating priests to publish banns announcing a marriage (though unions lacking banns could be reenacted) and to record the names of the couple and two witnesses present at the nuptials (also capable of reenactment).⁴² Thus thwarted by Tridentine rules in 1563, influential French jurists, such as Charles Dumoulin, convinced the government to refuse adoption of those church regulations on marriage because they contravened French law.⁴³ On the heels of refusal, French jurists stood on the Edict of 1557, ruled against clandestine marriages, and pressed for further reform.
16

     Over the next decades French judges and avocats, joined by kings, created a Marital Law Compact (arrêts and edicts) hailed as the national cornerstone of a French system of jurisprudence operative in a sovereign nation and distinguished from others in Europe (Roman law, Canon law, Feudal law, and contemporary laws of other states). Moving from the social rim, where evidence of judicial activism from the 1550s through the 1590s is striking, case law decisions (notable arrêts) preceded royal edicts eventually issued at the statutory center. A case in point, Barnabé Brisson, judge in the Parlement of Paris, vigorously defended the authority of French courts to overrule church-court decisions based on Tridentine regulations still not recognized in France.⁴⁴ But he also decried passionately the current lack of a French law that would provide specific civil grounds for nullifying all marriages made secretly (majors over twenty-five and thirty, as well as minors). In 1576 Brisson pronounced on a case, Le Loup-Morel-Nazaret, later cited as "notable." This alleged marriage, enacted by majors secretly without church banns, was declared invalid by an ecclesiastical court (at Soissons), which invoked Tridentine rubrics ordering such banns. On appeal (for abuse of jursdiction, appel comme d'abus) by the couple, however, the Parlement of Paris (all chambers assembled) called attention to the fact that Tridentine rules were not followed in France and declared the union valid. Justifying removal of the case from a church court to Parlement and the civil law decision that blatantly ignored the new church rules, Brisson resolutely called for a French ordinance that would nullify all clandestine unions. What is desperately needed, he said, is a French law with provisions establishing precise civil law grounds for nullifying all clandestine marriages and penalties rigorous enough to deter perpetrators.⁴⁵ Within a few years those kinds of complaints from the judiciary, aimed at marginalizing church law and establishing the sovereignty of French law in marital matters, were addressed by a landmark ordinance.
17

     Next on the legislative docket, the important Ordinance of 1579 (Ordinance of Blois) confirmed the Edict of 1557 but brooked none of its troublesome limitations.⁴⁶ This ordinance brazenly facilitated the evocation of clandestine marriage cases into French courts by declaring the French rapt charge applicable to clandestinity (as advocated earlier and applied in Constard--Liguier, 1554). To be sure, the Ordinance of 1561 (o.s. 1560) had resurrected the Roman law charge, rapt [de violence] and applied it to instances of abduction and forced marriage without regard for parental consent. But the Ordinance of 1579 extended the rapt charge by incorporating two types of accusations: rapt de violence (as in the Ordinance of 1561) for abduction (usually without any consent), and rapt de séduction for seduction, or elopement (sometimes with couple consent but without the parental equivalent).⁴⁷ It also expanded the clandestinity charge coverage to include majors by impressing new civil procedures on church "solemnities" at nuptials. As a warning duly noted, moreover, this statute applied to all in society.
18

     Stated with clarity, shored up procedurally, and unimpeded by prior "laws and customs," the Ordinance of 1579 applies to all persons of whatever rank (" estat, qualité, et condition") in society. First, the ordinance charges those who suborn, or seduce, minors into marrying without parental consent (rapt de séduction), or those who violently force or abduct persons (rapt de violence), along with accomplices, with the French crime of rapt (covert action injuring a whole family). The charge of rapt (incurring the death penalty), moreover, cannot be pardoned or waived, not even if consent is obtained after the nuptials (as accepted by the church). Demanding parental consent before the marital act (not after), the ordinance confirms the right of parents (prior law and custom aside) to disinherit errant children (as in the Edict of 1557). Second, the Ordinance of 1579 dictates strict new French civil procedures (overriding Tridentine rules) that clergy, and also notaries, must follow. Before nuptials take place (not after), priests must obtain proof of age (for all couples) and parental consent (for minors); publish marriage banns (for minors and majors); and at nuptials require the presence of four witnesses (not just the two specified by the church). In official registries, therefore, notaries are forbidden to record any verbal "marriage promises" of a couple (the custom frowned upon in the Edict of 1557). Failing to follow these civil procedures, priests and notaries may be charged, as accomplices, with the crime of rapt. ⁴⁸ Thenceforth this ordinance set the official French standard for contracting valid marriages across social ranks in that nation.
19

     A juridical umbrella for French society, the Ordinance of 1579 patched loopholes in the Edict of 1557 by adding the stringent measures already recommended by some jurists and often carried out in law practice. The French Ordinance of 1579 tried to stop secrecy by demanding not only parental consent for minors but also proof of age and published church banns for all couples prior to nuptials; and it refused to accept consent, or banns, obtained afterward (allowed by church courts). It spelled out French civil procedures to be followed by clergy performing nuptials (moving far beyond the church solemnities) and also for notaries (forbidden to register "marriage promises"), and it made priests and notaries culpable as accomplices for these civil infractions. Finally, the ordinance attached the rapt charge to that of clandestinity involving minors (essentially all those of marriageable age). In fact, the astute inclusion of a rapt charge in 1579 provided French courts with a powerful procedural tool that enabled jurists to evoke marital cases into the civil bailiwick more swiftly. In practice after 1579 judges rarely invoked the death penalty for clandestinity and rapt; they most often sentenced offenders to "public reparations" including fines, banishment, or imprisonment (as cases show).⁴⁹ But in effect the presence of a rapt charge procedurally impeded church jurisdiction, because ecclesiastical courts were prohibited from ruling on cases involving capital punishment. As a result, in France from 1557, then 1579, church judges and parish priests were drawn forcibly (albeit not without resistance) under state authority subjecting marital acts to French civil law.⁵⁰ In other European states, however, church courts applying church law directives (Catholic or Protestant) continued to wrestle with legal problems caused by the retention of vague "marriage promises" during the 1600s, some into the 1700s.⁵¹
20

     This emerging French Marital Law Compact, unprecedented in Europe, generated a long church-state quarrel in France over the legal status of parental consent (for minors), the civil procedures imposed on church "solemnities," the expanded definition of "clandestine marriage" to include majors who wed without banns and witnesses, the means (if any) to rectify clandestine unions, and the question of jurisdiction. On one side, ecclesiastical lawyers, judges, and courts, along with the papacy, claimed church jurisdiction in line with Canon law and buttressed by Tridentine rules. They treated marriage primarily as a holy sacrament mutually conferred by the consenting couple, confirmed by consumation, blessed by the church in nuptials, and tied to spiritual well being. For them the term "clandestine" signified secret marriage promises treated as "irregular" because they lacked prior couple consent (or banns, or witnesses, or nuptials). In this venue church judges in European ecclesiastical courts, besides assigning penance, often allowed prior "irregularities" to be rectified and then reenacted the alleged marriage. On the other side, French lawyers, judges, and courts, along with the government, claimed state jurisdiction in line with the new Marital Law Compact in the making. They treated marriage primarily as a public act transmitting family property, sanctioned by the state, and tied to the public good. For them the term "clandestine" signified a secret marriage deemed "illegal" because it denied natural law (the command to honor parents) and French civil law (notable arrêts and Edicts 1557, 1561, 1579) mandating parental consent (for minors) and civil procedures for all (proof of age, publication of church banns and requisite witnesses) before (not after) the marital act. In this venue French judges in civil courts, armed with a disinheritance penalty, a rapt charge, and civil procedures framing nuptials, were disinclined to allow rectification of "illegalities" after an illicit marital act (consummated or not) and often nullified clandestine unions.
21

     Reflecting these conflicting legal stances was a popular European story told, read, and staged in Italy and England but revamped by necessity in France. Traditional Canon law rubrics (ordaining couple consent) informed the Italian plot of Bandello's story of Romeo and Juliette, as well as the later English drama by Shakespeare, where the fictional consenting couple secretly but validly enacts a marriage without parental consent, or banns, by exchanging marriage promises witnessed only by a friar.⁵² But French arrêts given from the 1530s through the 1550s, along with the Edict of 1557, account for the adjustments made to that plot by the French writer (who studied law with Jean de Coras), Pierre Boaistuau, whose fictional consenting couple were stymied for lack of parental consent as were living French counterparts recorded by jurists.⁵³ The gulf widened with time. 22

     Duly empowered by the Marital Law Compact, especially the influential Ordinance of 1579 extending the parameters of the clandestinity charge, French jurists zealously moved against incongruous Canon law rulings in church courts. Demonstrating the powerful effects of that ordinance, a prominent avocat, Louis Servin, contrasted Brisson's necessarily limited decision on Le Loup-Morel--Nazaret (1576) to a current notable decision, Houlbronne--Pallier (1601), which demonstrated the powerful effects of the intervening Ordinance of 1579. Elisabeth Pallier brought a complaint to a Parisian church court charging that Pierre Houlbronne, her husband since 1587 and father of children (deceased), intended to leave her to marry another woman in a marriage arranged by his parents. Because the alleged Houlbronne-Pallier marriage had been conducted in an "irregular" manner (no banns, witnesses, or nuptials), the church judge in 1595 took steps to regularize it. When Pierre (a minor under thirty) balked, the church court arrested and imprisoned him; when he capitulated, church guards led him to the nuptials enacted without obtaining parental consent (now required by French law). Although the Houlbronne parents objected, charging the marriage (lacking parental consent) was clandestine and illegal, an ecclesiastical court held the union, as reenacted, valid. But the case was brought on appeal (charging clandestinity and rapt) to the Parlement of Paris (all chambers assembled), and French judges in 1601 overruled the church court. Forefronting French law, they noted that Pierre's consent had been coerced (church threats of imprisonment), the church had illegally reenacted nuptials that had lacked proper banns, and church judges failed to obtain parental consent prior to nuptials. Parlement's arrêt of 1601 thus declared this alleged marriage clandestine and illegal and nullified it.⁵⁴ Given the striking contrast between the limited Morel-Le Loup--Nazaret decision (1576) lacking the authority conferred by the Ordinance of 1579, and the bold Houlbronne--Pallier decision (1601), cited for generations by Arrestographes as "notable," it was clear that when collisions between church law and the Edicts of 1557 and 1579 occurred henceforth, the French statutes (backed by past and current notable arrêts) would prevail to the letter and even beyond.
23

     Following aggressive civil actions derailing church policy and instituting a national alternative in France, the clergy voiced complaints, the jurists defended French law, and the interested public (actual or potential litigants) began to take notice. Judging from clerical grievances treated in an Edict of 1580, some church judges and parish priests thought themselves besieged. While disputed marriage cases were pending in ecclesiastical courts, or even decided, they complained, secular judges brought clandestinity and rapt charges, sometimes long after marriages have taken place, and they also moved cases into civil courts without following proper appeal procedures. Responding to the clergy the government duly admonished French judges to mind procedural rules but adamantly confirmed--specifically citing the Ordinance of 1579--that priests were forbidden to marry couples without prior proof of age and publication of banns, as well as prior parental consent (for minors), that church judges must not reenact and then declare clandestine unions valid, and that failure to comply with this ordinance would result in civil charges of clandestinity enabling French courts to judge the cases.⁵⁵ Colored by national consciousness, French ways versus those foreign, such attitudes echoed views of jurists such as Pierre Pithou and Antoine Loisel, who extolled "Gallican liberties" denying popes authority in "temporal" affairs and favored civil cognizance of marital affairs in France.⁵⁶ Whereas most European states retained church-oriented tribunals for marital affairs--the ecclesiastical courts (Catholic or Anglican), or the consistories (Protestant)--France strengthened its civil courts and accomodated Catholics and Protestants in them.⁵⁷ When later generations of Arrestographes stepped into this fraught legal arena, they turned the national legal theme on marital matters voiced by predecessors into a French anthem replayed throughout the 1600s. Along the way, moreover, they posited a legal theory on the binding nature of precedents culled from notable decisions.
24

The Legal Theory of Binding Precedents

By the early 1600s French jurists stood firmly on legal grounds supplied by the Marital Law Compact in place for two generations and still in the making. They routinely took up suits against clandestine marriages, alleged the charge of rapt, employed the appeal procedure (for abuse of jurisdiction) to take cases out of ecclesiastical courts, nullified marriages in civil courts, and punished couples and accomplices just as clerical complaints had attested. In tandem some church judges, besides complaining about procedural infractions, attempted to evade French laws and refused to relinquish control of disputed marital affairs to civil courts. As shown in Houlbronne--Pallier (1601), church judges continued to reenact marriages of majors and minors irregularly conducted, coerce couples into submission, summon families to ecclesiastical courts for hearings on clandestinity, act in accord with Canon law (couple consent) but ignore the parental equivalent, and render positive rulings despite the absence of parental consent and published banns (before the union) now legally required in France. Those maneuvers of church lawyers and judges, which were aimed at rectifying (rather than breaking) irregular unions, sustaining (rather than modifying) Canon law, and holding (rather than losing) church jurisdiction over marital affairs, raised the professional and patriotic ire of jurists actively building a French legal system.
25

     In the face of clerical defiance of French law after the Ordinance of 1579, determined jurists published books aggressively defending the Marital Law Compact, which accorded sovereignty to "French civil law" in defining, judging, and penalizing clandestine marriage. Collecting and printing no-table arrêts (past and present), they built a body of case law and advanced a legal theory of binding precedents--notable arrêts treated as law--based on it. Judging from the harsh tone taken by the avocat, Jean Chenu, in his influential book, One Hundred Notable and Singular Questions of Law Decided by Memorable Arrêts (1603), marital affairs, now the locus of a contest over the sovereignty of French law in that nation, aroused passion in judicial circles. Seeking public attention, Chenu and his printers advertised and marketed this book in five amplified reprints from 1602 to 1620 before Chenu's death (1627) and afterward in two more editions during the 1630s.⁵⁸ Writing and augmenting works during this period when judicial secrecy, already breached, was undermined and abandoned, Chenu was not satisfied merely to set forth notable arrêts as did earlier Arrestographes. Rather, he identified and advertised important questions of law, recorded relevant arrêts, and revealed the legal reasoning behind decisions (as did jurists thereafter). Drawing attention to French professional expertise, he provided a historical rationale for legal change and legitimized the Marital Law Compact that bolstered French jurisprudence as an independant system culturally driven.
26

     In Singular Questions of Law (1603), Chenu berates recalcitrant church judges who defy French laws regulating marriage. "It is scurrilous to say that royal ordinances do not [legally] bind ecclesiastical judges," because "church judges are subjects of the king and must guard and observe them [French laws]." While Canon law may determine the validity of the (religious) "promise" in marriage, which is a spiritual matter, it may not rule on the legality of marriage "conventions" (dower, dowry, donations in marital contracts), which is a secular matter involving disposition of family property subject to "damages and interests" touching society at large. In marital affairs, he warned, "church judges must observe royal ordinances."⁵⁹ Clandestine marriage cases (incurring the crime of rapt) must be heard in civil courts staffed by French judges, he insists, and church judges must not order parents (or relatives) disputing such marriages to assemble with couples for hearings in ecclesiastical courts.⁶⁰ French marital laws, Chenu holds, are "established for the public good": that is, "to curtail lawsuits [over property] which often cause the ruin of good families."⁶¹ Alleging binding legal precedents, including the celebrated Houlbronne--Pallier decision (1601), he adds new ones, such as Blondeau-Le Moine--Chaste-lain (1600).⁶² Caught up in rampant judicial activism, he also calls attention to notable decisions that move beyond edicts in place.
27

     By highlighting the decision given in Cymard-Le Coq--Le Duc (1592), Chenu signalled for readers a legal precedent in the making. In this case, a consenting couple (both of majority age) made a marriage contract, which was signed by a notary, and then wed without obtaining parental consent (a legal move consonant with the Edicts of 1557 and 1579). Nevertheless, the marriage was contested by the bride's mother who alleged her daughter's consent had been coerced by the groom. Lest readers wonder why judges ruled this union (made by majors) clandestine and invalid, Chenu revealed the judicial reasoning behind the decision. That is (the judges held), the only way a couple of majority age (or any age) can verify mutual couple consent (untainted by coercion) given before the marital act is to observe French law and obtain parental consent as sure proof.⁶³ As reasoned, therefore, only parental consent could bear proper witness to couple consent. In fact, this notable decision of 1592 (welding parental and couple consent at all ages) moved beyond the Edicts of 1557 and 1579, which suggested only that couples who had reached majority age should seek parental "advice and counsel" (not consent). And within several decades this binding case law precedent of 1592 was embedded in a statute. Given the national stand taken by the Arrestographes, including Jean Chenu, who treated marriage as a contractual act that affected the "public good," the proper legal implementation of marriage contracts (transmitting property and subject to French law) was just as crucial in making a union, if not more so, than the religious observance of spiritual promises (associated with private piety and subject to Canon law). Between the 1550s and the early 1600s, therefore, the notion of marriage as a civil "contract," or juridical act related to the "public good," came to hold sway in precedents set by case law and later incorporated into edicts.
28

     In the wake of Chenu's collection of notable arrêts addressing marital questions, as well as those of other Arrestographes, ⁶⁴ another church-state showdown occurred. Standing fast on the vexed issue of clandestinity (now expanded to charge minors and majors), the French government extended the Law Compact. While the next Edict of 1606 did not dispute a major complaint of the clergy--that "[legal] appeals for abuse of jurisdiction" were on the rise--it candidly placed the blame on recalcitrant church policy by repeating succinctly the points rendered eloquently by Chenu a few years earlier. That is, church judges may oversee clandestine marriage cases in ecclesiastical courts only if they follow French law--specifically the Ordinance of 1579--in making judgments.⁶⁵ The warning was clear: if priests in parishes and judges in church courts do not observe French laws mandating prior parental consent (for minors) and civil procedures framing nuptials (prior proof of age, banns, and witnesses for all), French judges in civil courts may intervene, charge clandestinity, issue civil decisions, and assign penalties.
29

     Taken together the works of several generations of Arrestographes reveals an interesting juridical pattern that demonstrates how the Marital Law Compact was formulated. That is, it was Parlement's notable arrêts--binding legal precedents, or case law--at the social rim that provoked the promulgation of royal edicts (from the government) at the statutory center. That rim-to-center pattern appears in the early works written by such jurists as Gilles Le Maistre, Jean de Coras, Jean Papon, Barnabé Brisson, and Louis Servin at a time when judicial secrecy was breached and beginning to wane (1540s-1590s). The pattern also holds later when secrecy was under-mined, then abandoned, and judicial publicity became the norm (1600s-1650s), in works of jurists such as Jean Chenu, Barnabé Le Vest (son), also Antoine Loisel, Julien Brodeau, and Claude Le Prestre. As a result by the mid-1600s the term chosen to characterize "French Jurisprudence," "the Jurisprudence of the Arrêts,"⁶⁶ correctly captured a legislative configuration molded by case law.⁶⁷ In the meantime, the turn to judicial publicity opened up the whole legal arena to intense public inspection as laypersons, as well as professionals, pursued legal knowledge.
30

The Practice of Judicial Publicity

Since the first generations of Arrestographes left readers to ferret out legal questions and reasoning behind arrêts, the "public" they addressed were legal professionals and students capable of doing just that. In contrast, the second generations identified legal questions, revealed judicial reasoning, cited "notable" decisions as binding precedents (some written into law), and marketed collections of arrêts to a general public audience, professional and lay, seeking legal lessons. Some jurists acknowledged the teaching mission and its expansion. In 1607 Antoine Loisel, celebrated judge, Parlement of Paris, composed a popular collection of French legal maxims (drawn from customs, arrêts, and proverbs) that aided memory in law practice and simplified legal precepts for discussants.⁶⁸ Admitting that judges in Parlement give great weight to prior notable arrêts when making current judicial decisions--the theory of binding precedents--Loisel avows his teaching aim: "to communicate [legal information] to the public" and thus make precedents known.⁶⁹ In 1612 Barnabé Le Vest (son) put his father's "celebrated arrêts" in print "to communicate [legal information] to the public." He designated an extended "public" of professionals and laypersons (les hommes privez) expected to "profit" from the information.⁷⁰ Between 1630 and 1650 the renowned avocat, Julien Brodeau, flooded the market with his impressive Brodeau-Loüet project, Collection of Some Notable Arrêts, ⁷¹ and its popular reception marked the definitive turn to judicial publicity as a social norm. Seeking safe passage through a growing marital legal thicket, the general public--involved in suits, observing them, hearing or reading about cases, and viewing popular engravings--sought access to notable arrêts precisely because they were binding precedents likely to inform current marital rulings and even to provoke new laws.
31

     By the 1640s and 1650s, jurists addressed works to an expanding public audience in waiting. For one, Claude Le Prestre, judge, Parlement of Paris, made valuable legal information readily accessible in his Notable Questions of Law (1645). That collection of notable arrêts (1564-1642)-binding precedents treated as law--was well organized by legal category, then by date, and meticulously indexed. Attached was a shorter tract, Treatise on Clandestine Marriages, that commented on the culturally unique marital policy developed in France.⁷² To the growing body of notable arrêts, or precedents, already collected by Arrestographes, Le Prestre added decisions sounding new warnings. For instance, those who read (and told cohorts) about the D'Estang--Montalambert case (1603) cited in Le Prestre's Notable Questions learned from law practice new dangers posed by clandestinity (for majors) that tutelage in the letter of the law would not have revealed. Wed (as majors) albeit secretly (without published banns) in 1580, d'Estang and Montalambert hid the fact for twenty-two years during which they had two children. Two decades later, however, the couple (now deceased) was undone by collateral relatives who charged clandestinity and brought suit. Moving beyond the Edicts of 1557 and 1579, this arrêt of 1603, which declared the alleged marriage of the deceased couple clandestine, thus nul, retroactively disinherited them (as if alive) from family property. Then the decision declared the two surviving children "illegitimate," hence "bastards" unable to succeed, and disinherited them in turn. As a result, inheritance of the family assets in question shifted over to the very collateral relatives who had revealed the secret.⁷³ The precedent set by D'Estang--Montalambert (1603), disinheritance of an extended family (deceased perpetrators and living successors) for clandestinity, became part of a statute within two decades, demonstrating the power of judicial publicity (exemplified here in Le Prestre's collection) to fore-warn the general public of legal change in the offing.
32

     The next Ordinance of 1629 moved on that legal front: extending disinheritance in perpetuity. Extolling the French legal system, this ordinance praises the "good laws" that have made "this state flourish more than others in the world" and have led "neighbors and foreigners to borrow . . . [such] regulations."⁷⁴ First, the Ordinance of 1629 commands all judges (civil and ecclesiastical) to observe exactly marital provisions in the Ordinance of 1579. That is, all judges must declare "illegal" marriages (of minors and majors) "invalidly contracted" and must charge perpetrators and accomplices (in minority cases) with the crime of rapt. Second, the ordinance sets forth additional civil procedures applicable to nuptials (again moving beyond the church repertoire). Now priests are forbidden to celebrate marriages for persons who do not live in their parishes, they must obtain in writing (prior to nuptials) proofs of age and parental consent from at least six witnesses (rather than the four cited in 1557) chosen from among closest relatives of both parties.⁷⁵ Third, a long provision cast in angry tones reveals three problems: couples of unequal rank (and property holdings) have been marrying, families have been hiding rather than prosecuting clandestine marriages, and judges have been granting reprieves upon special pleading to avoid penalties. Confirming all edicts constituting the Marital Law Compact thus far, this provision dictates severe penalties designed "to end such enterprises:" that is, "death and confiscation of goods."⁷⁶ As this tough provision reveals, many families began to realize that dangers, as well as safeguards, lurked in the amplified Marital Law Compact; and once compromised, they sought remedy in secrets and silence to elude the law, or in judicial discretion to moderate its effects. Having been faced at the outset with church evasion of French law, the government now took up the problem of family evasion.
33

     By 1629 there is a discernible shift in legal language. Instead of defending the family against errant children (as earlier), the Ordinance of 1629 defends society against errant couples and complicit families, designating both children who conduct clandestine marriages and families who hide them "violators of the laws and disturbers of the public peace."⁷⁷ First, underage sons and daughters--now including widows under twenty-five-are warned along with their families against hiding marriages illicitly contracted. In tandem judges, civil and ecclesiastical, are ordered to inform French courts of all clandestinity charges promptly and to proceed with hearings despite family requests to stem actions. Finally, all marriages found "illegitimately contracted" must be declared "nul and void" with no special pleading allowed, although proof that couple consent (in all cases) and parental consent (in minority) were obtained before the act (not after it), (as demanded in 1579) will be accepted. Second, severe penalties-"death and confiscation of goods"--apply not only to guilty couples but also to complicit families. To begin, errant couples lose all inheritance rights (direct and collateral), and children born to them are declared "illegitimate," hence "bastards" legally incapable of succession (as ruled earlier in D'Estang--Montalambert [1603]) along with their posterity. Next, complicit family members convicted as accomplices (hiding an illicit union), as well as their posterity, forfeit succession in the same manner. Finally, neither culprits nor putative heirs may be "rehabilitated or legitimated" after the fact (to regain place in family succession); and all special pleas for amnesty sent to judges must be denied.⁷⁸ While the death penalty for rapt (re minors) (added in 1579) appears to be resurrected here, actually the general penalty instituted (since death sentences remained rare) was that of civil death incurred by denial of inheritance rights (lineage and collateral) to all culprits, complicit families, and heirs--or presumably, if no heirs remained, by possible state "confiscation" of family assets.⁷⁹
34

     The Ordinance of 1629 intended to curb parental decisions (honored by judicial discretion) that allowed families to accept illicit marriages they could not, or would not, undo. It also aimed to rein in opportunities for reprieve. Formerly the property of couples (and direct heirs) was at risk, given the amendment of Customary law to allow disinheritance. But now that of entire families (and heirs, direct and collateral) was endangered should a clandestine marriage of majors or minors be revealed at the time, or even generations later.⁸⁰ In effect, this ordinance put the state in the shoes of the family (formerly authorized to indict culprits or not) by investing the government with a mandate to indict and prosecute clandestine marriages across social ranks as civil matters connected with the public interest, rather than as quasi-family affairs related to individuals. This shift from familial to government authority, from individual to public interests, was publicized by many Arrestographes in popular print formats such as Le Prestre's book aimed at wide public consumption. Across rank, gender, and later, race as well, women and men rushed to read, hear, see, and purchase legal information widely sold--edicts, arrêts, books, pamphlets, factums (legal briefs), engravings--that recounted compelling law stories, as well as strategies for safe passage or at least risk avoidance.⁸¹ Over time, therefore, the French practice of judicial publicity pulled the public into a vortex of legal knowledge, language, and concepts that fostered awareness of membership in a shared law-oriented society where discussions of civil rights, protected or not, flourished amid civil actions and social responses to them.
35

The Articulation of a Civil Society

Certainly by the 1620s the legal notion of civil death and its corollary, civil life, presumed that an individual French life was lived not only in a family but also in a larger social entity (emcompassing families) where the public good resided. Increasingly marital acts were discussed, even depicted, not as individual acts but as familial "accords" officially rendered in legal contracts made part of a public domain. In 1633 the famous judges, Jérôme Bignon and Pierre Séguier (later chancellor), worked on a project to tighten legal control over marriage contracts and assure family accord in the public interest.⁸² That same year an astute social commentator, Abraham Bosse, depicted the theme of family accord in his popular engraving, The Marriage Contract (Fig. 1), where two families officially negotiate marital property (recorded by a notary) for a couple merely trysting (like children) privately.⁸³ Among the papers of Mathieu Molé, president, Parlement of Paris, in fact, a document of 1634 discusses the public nature of marriage "contracts" and the priority of family "accord" over "individual accord" in such public acts.

36

Marriages are not made for the persons who contract [them] but for the honor and advantage of families; . . . one passes a [marital] contract not as an individual accord but as [an accord] common to all relatives, since [through marriage] one gives to them [the parents and relatives] heirs [direct and collateral] and [also gives to them] in-laws whom they [families] cannot [be forced to] receive against their will.⁸⁴

Clearly "individual accord," or the personal consent of a couple whose persons would be wed, was no longer separable from "family accord," or the juridical consent of parents and nearest relatives whose property, a matter related to public utility, was at stake in a union. If couples must not be coerced into a marriage, the passage suggested, neither must families. By the 1630s the lauded French Marital Law Compact, harbinger of "French Jurisprudence," had been rooted in the national landscape for a century. The French were unprepared, therefore, when an assault was launched against those national laws during a clandestinity case that provoked legal disputation and social gossip all over Europe.

Figure 1. The Marriage Contract, by Abraham Bosse. Cliché Bibliothèque nationale de France, Paris.

     To the astonishment of many Europeans in 1634, the French king, Louis XIII (still without progeny), brought a rapt charge against the ruler of a duchy, Charles, duke of Lorraine, for having "seduced" the king's only brother (and successor), Gaston, duke of Orléans, into contracting a clandestine marriage (without proper banns or the king's consent) in 1632 with Marguerite of Lorraine (the duke's sister).⁸⁵ Faced with the Bourbon--Lorraine case (1634), European observers had to ponder the legal question juggled since 1557: in marital affairs is Canon law or French law sovereign in that nation? French jurists did not doubt the answer. The king has power over such "public actions," they held, which is given him by "law and nature, civil law, and the state."⁸⁶ The clandestine marriage of Gaston and Marguerite can be nullified, the attorney general told the Parlement of Paris, by "the laws of the state, the ordinances of the king, the honor of the Crown, the surety of France, and the express will of the king."⁸⁷ In France where the "Gallican [Catholic] Church" was established, it was stated in Parlement (Bignon and Molé in attendance), "clandestine marriage is illegal." Therefore, children born of Gaston's marriage would be declared "il-legitimate . . . [thus] bastards" [who cannot succeed]." Accordingly, Parlement's arrêt of 1634 nullified the Orléans-Lorraine marriage.⁸⁸ When asked to opine in 1635, moreover, the Assembly of the [Catholic] Clergy of France acquiesced in Gallican fashion. "In Rome marriage is not declared nul or held clandestine [for default of banns or parental consent] . . . ," they admitted, but in France "the Ordinance of Blois [1579] is very powerful." It is a "public law which nullifies marriages made clandestinely" for lack of banns and also for "default of consent from principal relatives . . . , and the king is the principal relative of princes of the blood . . . since he is sovereign."⁸⁹ Arguing against the marriage, these French commentators gave "public laws" applied in French civil courts precedence over church laws in ecclesiastical courts and gave public decisions made for "reason of state" (raison d'état) priority over private promises spiritual in nature.⁹⁰ Across Europe the dissenters weighed in with equal fervor.
37

     Marguerite, princess of Lorraine, her marriage nullified in France, her reputation compromised, deluged aristocrats, women and men, all over Europe with aggrieved letters and called upon the pope to hear this marital case in Rome. In letters sent to four prominent cardinals, she decried "the injustice done to me in France" and called upon Rome to guard "church law" (couple consent) and validate this marriage (by upholding Canon law), because "one cannot violate the sacraments . . . or the rights of the Holy See . . . without having the church for an adversary. . . ."⁹¹ Supporters argued that since the Council of Trent (1563) did not require parental consent for a valid marriage, French law and the Parlement of Paris could not do so. And some held that "the arrêt of the Parlement of Paris cannot be founded on the privileges of the Gallican [French] church," because it was part of the universal (Roman Catholic) church beholden to Canon law and other church rules.⁹² They concluded "that in Rome marriage is not declared nul or held clandestine for default of banns, and children issued from such a marriage . . . can succeed to their fathers and mothers and other relatives."⁹³ Arguing for the marriage, these European commentators gave purportedly universal church laws priority over particular French laws, the efficacy of a holy sacrament more weight than a legal contract. Arguments vented in Europe, French law prevailed. When the French church capitulated at home and the Holy See failed to give the case a hearing in Rome, the Catholic church recognized, tacitly at least, the sovereignty of French law in that nation. Following the barrage of criticism suffered during this high-profile marital skirmish of 1634-1635, the French decisively reconfirmed the Marital Law Compact.
38

     Bristling with anger and provocatively cast, the Declaration of 1639 pronounced the French Marital Law Compact, including the tough provisions in the Ordinance of 1629, the law of the nation.⁹⁴ Summarizing all statutory provisions of 1557, 1579, and 1629, as well as admonishments of 1580, 1601, and 1606, the Declaration of 1639 again commands observation of royal edicts despite contravention of alleged "immemorial customs and privileges . . . to the contrary." Next, the declaration widens the scope for the principle of familial accord by focusing not on parental consent but on familial consent (parents and nearest relatives officially recorded); and it also reaffirms the extended disinheritance penalties for clandestinity and rapt (that triggered civil death in the Ordinance of 1629). One provision alludes to families (not individuals) as the "contracting parties" (as depicted in Bosse's engraving of 1633 and noted in Molé's comments of 1634). It specifically demands parental-familial "advice and consent" regardless of the age of parties to be wed (the precedent set two decades earlier in Cymard-Le Coq--Le Duc, 1592). And it confirms extended disinheritance penalties against errant couples, their children, and grandchildren (echoing D'Estang--Montalambert [1603] and the Ordinance of 1629).
39

     Another provision, using very strong language, commands parents, whether they oppose a marriage or not, to bring legal charges against children who enact them clandestinely, or face indictment as accomplices and likewise forfeit inheritance for themselves and their posterity (as warned in 1629).⁹⁵ The reasoning was as follows: neither parental authority nor personal inclination determines whether marital actions are legal or illegal, acceptable or injurious, to a family. Rather, French law, which is concerned with public utility (likewise a casuality of illicit marital unions), makes that determination and prosecutes clandestinity for the greater public good.⁹⁶ As the repositioning of injured parties effected in 1629 and confirmed in 1639 shows, the Marital Law Compact, which formerly legitimated familial authority supporting family networks, now underscored public authority upholding the whole society. Whereas parents had acted for the family, which was designated the damaged party, now the state donned the mantle of public injury as well and acted for society at large. Whereas marital suits had been treated as family affairs located in limited domestic space, now they were treated as civil suits located in juridically framed social space, a repository for the public good, where judicial publicity sparked public discussion in a variety of locations including the Gallery of the Palais de Justice.
40

     The printer of Le Prestre's Notable Questions of Law (1645) directed the public to purchase the book in Paris at the stall of "Gervais Aliot" located "in the [Gallery of the] Palais [de Justice] near the Chapel of Saint Michael." And Bosse's popular engraving, The Gallery of the Palais [de Justice] (Fig. 2, c. 1640),⁹⁷ also for sale, visually captured lively public discussions on legal matters in that "Gallery" area of the Great Hall next to Parisian law courts. At one end of the Great Hall procureurs and avocats, sitting behind folding desks, gave potential litigants legal advice, commented on trials in progress, disseminated legal information, and made professional referrals. In the Gallery area around the outer walls (by the pillars) depicted here, boutiques sold luxury items and bookstalls (like that of Aliot) carried printed legal materials.⁹⁸ As The Gallery engraving shows, public discussion of lawsuits and legal issues was a social habit fed by judicial publicity, shared by women and men, and carried on with enough zeal to stir criticism. At the left of the picture two men look at print materials for sale at a bookstall. In the middle several women and a man examine a fan sold at a luxury shop. To the right, in front of the lace shop--which has no customers--a man and a woman stride with purpose into this commercial scene. She holds a sheet of paper (perhaps a new arrêt or edict), and the two appear ready to impart riveting legal news to the others that will disrupt commerce (as suggested in the verse below). Noting that "[polite] society [le monde] regularly gathers at the Gallery," the verse explains that the "anger [of one shopkeeper] is provoked against the chicaners, who talk [endlessly] about lawsuits [and] prevent customers from entering his boutique."⁹⁹ To be sure, legal questions did provoke vigorous public discussion, and the resulting social habit--non-stop law talk--whether carried on in the Gallery, or in courts, homes, salons, shops, or streets--configured the law-oriented space shared in common that jurists, such as Le Prestre, began to call "civil society" in contrast to "[polite] society" restricted in membership by rank.
41

Figure 2. The Gallery of the Palais [de justice], by Abraham Bosse. Cliché Bibliothèque nationale de France, Paris.

     Reviewing almost a century of legal history in Notable Questions, Le Prestre applauds the unique and successful regulation of various types of clandestine marriage in modern France that served the public good and admonishes the church for maintaining outmoded and unacceptable rules at the Council of Trent (1563).¹⁰⁰ In turn, by resort to a legal fiction, he makes tangible a juridically framed space called "civil society" (société civile) wherein the elusive concepts of "the public," "public utility," "public opinion," and "the public good" are situated. A space common to all French people, Le Prestre's "civil society" is framed by French marital laws (arrêts and edicts in the Law Compact) that conserve the public welfare. As he says of French marital law, crucial in forming the nation, "[French] law . . . [is] inseparable from public utility."¹⁰¹ Second, when contests erupt in civil society, civil courts following French law adjudicate cases with the greater public good in mind. Third, guidelines for membership in civil society are broadcast by judicial publicity, or "notoriety," the social habit of publicizing questions of law, notable arrêts, and national edicts. Demonstrating the practice of publicity, Le Prestre flags notable arrêts on marital matters given over time by the Parlement of Paris. These are judicial decisions made "notorious in society," rendered "famous,"¹⁰² he explains, because as "celebrated" decisions (binding legal precedents) they "serve as law."¹⁰³ In marginal notes at each decision cited, Le Prestre gives read-ers general lessons on French jurisprudence. In sections containing "Extracts of the ordinances on marriage" and extracts of "Celebrated arrêts from the Parlement [of Paris]," he provides details.¹⁰⁴ Conceptualizing a civil society in which people share legal knowledge, engage in civil actions, and discuss civil rights and wrongs that sustain or undermine membership, Le Prestre locates it within the state of France.
42

     No stranger to French political theory positing family-state analogies for governance,¹⁰⁵ Le Prestre did not settle for the usual equiparation but advanced a complex model in which civil society bridged the other two. He imagines a French state (the République) evolving in several stages. First, individuals contract a--Marriage-- with reproductive effects--a Family. Second, resulting--Families-- with socio-juridical effects constitute--Civil Society (société civile). Third, that--Civil Society--provides the socio-juridical base for a specific nation--the Republic [of France]--and its political effects, the government, distinguished from those of other states.¹⁰⁶ Reminiscent of Arrestographes, including Jean Chenu, Le Prestre insists that marriage is not constituted by a church sacrament with inward spiritual effects touching only individuals; rather, it is constituted by a legal contract with outward public effects touching a whole civil society. For him, therefore, clandestine marriage, whatever form it takes, is asocial, dangerous, and illegal, because it undermines civil society and with it the sovereign state. 43

      While knowledge of the Marital Law Compact, as well as lessons supplied by Arrestographes, no doubt inspired this attempt to objectify the concept of a civil society in the 1630s, the European debates over Bourbon--Lorraine (1634), which challenged the sovereignty of French law, probably set it in motion. In fact, the French reaction to that challenge may explain why Le Prestre's model of civil society appeared (almost word for word) in the belligerent Declaration of 1639 that reconfirmed French marital law in the face of European naysayers, clerical and secular.¹⁰⁷ Although imperfectly articulated, Le Prestre's model of civil society, positing a juridical foundation for the French state, casts some light on reasons why a well-known jurist-writer, Antoine Furetière, proudly and patriotically inserted "French Jurisprudence"--"the Jurisprudence of the Arrêts"--into the pantheon of famous legal systems in the western world.¹⁰⁸ Bearing a definitive cultural stamp, French legal lessons on marital affairs, purveyed for a century, set that nation apart from others in Europe. 44

      Whereas the marital stage staked out in the rest of Europe in the 1600s and early 1700s still accomodated the living Romeos and Juliettes who married without parental-familial consent, that stage was dismantled in France from the 1550s to the 1650s. This juridical fact Marguerite of Lorraine unhappily learned in 1634 and Mary Grosvenor happily discovered in 1702 when her marital case, Fenwick--Grosvenor, was resolved amidst "a huge public scandal [in Paris]."¹⁰⁹ In 1700 the English Catholic aristocrat, Mary Grosvenor, emotionally fragile following the death of her Protestant husband and loss of her children (removed from her care by in-laws to be raised Protestant), succumbed to the blandishments of her new Catholic chaplain, a Benedictine monk, Louis Fenwick. Following a well-laid plan colored by English experience, Louis convinced the grieving widow that her flagging spirits would be raised by making a pilgrimage to Rome accompanied by him and servants hired for the trip (his sister, cousin, and hand-picked servants). Spending time in France on route, the scheming monk, opportunely joined by his brother, Edward Fenwick, seen frequently in Mary's company, put their plan in motion. Louis drugged the unsuspecting Mary with laudanum, then married her to Edward. When she awoke dazed in Edward's bed, the monk, his brother, the servants, and other bribed witnesses insisted she had been a willing bride the day before. Pursued by the complacent Fenwicks busily spreading word of the marriage in the expatriate English community in Paris, Grosvenor brought suit in a French court. Although the seemingly bizarre facts of her account (lacking reliable witnesses) were difficult to prove, the Fenwicks had made an enormous blunder. They assumed that in France, as in England, marriages made without parental consent, familial accord, proof of age, church banns, and nuptials witnessed were legal. Standing firmly on the French Marital Law Compact, however, French judges ruled for Grosvenor, found the union clandestine, hence illegal, and brought rapt charges against the Fenwick brothers (as perpetrators) and the servants (as accomplices).¹¹⁰ 45

      In England the marriage system, characterized as a scene of "moral and legal confusion" with attendant property problems, waxed chaotic due to conflicting sets of marital rules: those of the Anglican church where ecclesiastical courts still accepted "marriage promises," or verbal couple consent witnessed; and those of common law denying that private format for property transmission. Nevertheless, decade after decade through the 1600s all legislative efforts to require parental consent, formalize procedures, redefine clandestinity and outlaw it, failed in Parliament. There was no English statute that regulated marriage until the Hardwicke Act of 1753, which stipulated parental consent for minors (under twenty-one), and it was hampered by church-state rivalry well into the 1800s.¹¹¹ Considering the marital mayhem in England, which led the rogue Fenwicks to presume Grosvenor fair game in France, it would appear that Gratian's medieval rubric on couple consent, albeit innovative in its time and still romanticized today by some historians, was anachronistic and disruptive during the 1500s and 1600s when modern family formation and state building marched apace. Certainly the French, determined to build a national system of law, made that point even while jurists ironed out difficulties in a revamped French legal arena fraught with the usual human evasions and strategies undertaken to avoid, or minimize, new risks attending the Marital Law Compact.¹¹² 46

     Consciously building a system of French civil law deemed sovereign in the modern state--the essence of the cultural and national stand taken against Canon law and Roman law--French jurists, in league with governments, established from the 1550s to the 1650s an innovative Marital Law Compact (notable arrêts and royal edicts), which supported both family and state formation and substantiated political claims to French sovereignty as a nation in Europe. Abandoning judicial secrecy and instituting judicial publicity as a social norm, generations of influential jurists at the social rim--the Arrestographes--published (in French), advertised, and sold books containing collections of notable arrêts and commentaries on them, as well as royal edicts promulgated later at the purported statutory center. Caught up in judicial activism, the general public, women and men involved in family suits or contemplating them, interested in affairs of relatives and cohorts, and determined, above all, to minimize social risks in an era of rapid legal change, eagerly sought access to legal knowledge, most especially valuable lessons taught by the "Jurisprudence of the Arrêts" that established binding legal precedents and provoked new statutes. Reenacting the social habit of judicial publicity for many generations, they discussed civil rights and risks; attacked and defended social entitlements; accepted, mediated, or rejected given rules; and invoked legal and extralegal means for sustaining membership in civil society and avoiding civil death. Once aware of the law-oriented space they inhabited in common, "civil society," seat of public opinion and the public good, men and women, members of civil society, carved out, from the 1650s into the 1750s, public routes for articulating social responses to civil actions. A recognized public space in the French nation well trod from the 1600s to 1789, it was this shared socio-legal arena for action--civil society--that readily accomodated the social, legal, and political debates launched during the French Revolution.¹¹³

47

Sarah Hanley is a professor of history and a professor of law (by courtesy) at the University of Iowa. She thanks Kathleen A. Williams for professional insights on law practice, Mark H. Madden for enlightening forays into economic strategies, and Donald R. Kelley for eminent works on early French legal studies. This article is dedicated to the memory of Pierre Bourdieu whose "theory of action" informs the entire enterprise.
Notes

^1. On legal studies, see Donald R. Kelley, The Foundations of Modern Historical Scholarship: Language, Law, and History in the French Renaissance (New York: Columbia University Press, 1970), chaps. 5-8, and The Human Measure: Social Thought in the Western Legal Tradition (Cambridge: Harvard University Press, 1990), chap. 10-11, contrasting this approach with the more static English view of common law origins. On institutions, see Sarah Hanley, The Lit de Justice of the Kings of France: Constitutional Ideology in Legend, Ritual, and Discourse (Princeton: Princeton University Press, 1983; French ed. 1991), chaps. 1-4, table 1, tracing the creation of that constitutional assembly in 1527.

^2. Sarah Hanley, The Social Sites of Political Practice in France: Law, Litigation, and Local Knowledge, 1500-1800 (in progress), locates a law-centered public space and formation of public opinion in the 1600s anchored in lawsuits and the demand for legal information by an active public audience in the streets. This is a thesis contrary to that of Jürgen Habermas, The Structural Transformation of the Public Sphere: An Inquiry into a Category of Bourgeois Society, trans. Thomas Burger with Frederick Lawrence (Cambridge: M.I.T. Press, 1989), chaps. 2-3, positing for France a passive audience, 1500s-1600s, positioning a restricted "bourgeois public sphere" (space for publicity) only later in the 1750s, and narrowly confining that sphere to elite Enlightenment salon culture, "the realm of letters."

^3. The product of lobbying by jurists, the Edict of 1604 (droit annuel) assured inheritance rights for a yearly fee (one sixtieth of the value); see Antoine Fontanon, Les Edicts et ordonnances des roys de France . . . (Paris, 1611), 2:575. On the surcharge, or forced loan of 5 percent, added in 1621 and offices doubling in value by 1664, see Roland Mousnier, La Vénalité des offices sous Henry IV et Louis XIII (Paris: Presses Universitaires de France, 1971), 355-60. In theory kings could repurchase offices; in fact they rarely could afford to do so by the 1600s.

^4. Jurists such as Charles Loyseau (1564-1627), Cinq livres du droit des offices. Les Oeuvres de Loyseau [1610] (Paris, 1666), defined title to offices as a male right but later allowed transformation of offices (as immoveables) into propres (see note 24 below) treated as inalienable (and therefore inherited by men and women); see Paul Louis-Lucas, Étude sur la vénalité des charges et fonctions publiques . . . (Paris: Challemel aîné, 1883), 1: chap. 2. For some later family tactics, see Ralph E. Giesey, "Rules of Inheritance and Strategies of Mobility in Prerevolutionary France," American Historical Review 82 (1977): 271-89. When offices became heritable property (1604), women owned and inherited them, brought offices as dowries, invested in them, and nominated incumbents (as owner or tutor for the owner); therefore, Venality was a family affair.

^5. Robert Descimon, "The Birth of the Nobility of the Robe: Dignity versus Privilege in the Parlement of Paris, 1500-1700," in Changing Identities in Early Modern France, ed. Michael Wolfe (Durham: Duke University Press, 1997), 95-123, contrasts this "civil nobility," made noble through a legal fiction (imitating nature), with the sword nobility (cast in natural law terms).

^6. Studying financial offices, Daniel Dessert, Argent, pouvoir, et société au grand siècle (Paris: Fayard, 1984), demonstrates the importance of women's assets in supporting officeholding (477-88), as well as female networking through grandmothers, mothers, and aunts who provided offices, capital, and patronage (517-703); Carolyn C. Lougee, Le Paradis des Femmes: Women, Salons, and Social Stratification in Seventeenth-Century France (Princeton: Princeton University Press, 1976), traces the way female hypergamy aided the rise of this officeholding elite; and Albert N. Hamscher, The Parlement of Paris after the Fronde, 1653-1673 (Pittsburgh: University of Pittsburgh Press, 1976), discusses judicial family networks.

^7. Across ranks people with sufficient capital rushed to purchase, including critics like Charles Loyseau who parodied "Archomania" (office mania) in Cinq livres du droit des offices.

^8. The tendency to bypass patterns of law practice and to focus on the 1700s has hampered many fine studies: for example, Paul Ourliac and J. de Malafosse, Histoire du droit privé (Paris: Presses Universitaires de France, 1968), vol. 3, Le Droit familiale, forefronting legislation; Habermas, Structural Transformation, privileging the Enlightenment; Mary Ann Glendon, "Legal Concepts of Marriage and the Family," in Loving, Parenting, and Dying: The Family Cycle in England and America, Past and Present, ed. Vivian C. Fox and Martin H. Quitt (New York: Psychohistory Press, 1980), 103-4, adopting for Europe a misleading Anglo-American model; James F. Traer, Marriage and the Family in Eighteenth-Century France (Ithaca: Psychohistory Press, 1980), chaps. 1-2, assuming reform was initiated by royal legislation (46) and challenges to church doctrine were the product of Enlightenment thought in the 1700s (78); Joan DeJean, "Notorious Women: Marriage and the Novel in Crisis in France (1690-1715)," The Yale Journal of Criticism 4 (1991): 67-85, and DeJean, Tender Geographies: Women and the Origins of the Novel in France (New York: Columbia University Press, 1991), chaps. 4-5, holding (with Traer) that the contract theory of marriage emerged only around 1690-1715 and relying on the much later work of Joseph Pothier (Traité du contrat de mariage, 1768) to sustain that judgment; and David A. Bell, The Cult of the Nation of France: Inventing Nationalism, 1680-1800 (Cambridge: Harvard University Press, 2001), chap. 1, denying "nation-building" before the 1700s.

^9. See François Olivier-Martin, Histoire de la coutume de la prévôté et vicomté de Paris (Paris: Presses Universitaires de France, 1930), 1:86-88, 99-101, on compilations of regional customs (a fusion of Salic, Roman, and Feudal laws) ordered by kings in 1454, 1494, and 1509; and Pierre Petot, "Le Droit Commun selon les coutumiers," Nouvelle revue historique du droit français et étranger 28 (1960): 412-29, on the way customs came to be treated as "French common laws." For the national redaction of customs, Coutume de Paris (1510, revised 1580), see Olivier-Martin, Histoire de la coutume, 1: chap. 2, pts. 1-3; and chap. 2, pt. 4.

^10. This "Marital Law Compact" produced by "family-state negotiations" was first identified in Sarah Hanley, "Engendering the State: Family Formation and State Building in Early Modern France," French Historical Studies 16:1 (1989): 4-27, and "Engendrer l'État: Formation familiale et construction de l'État dans la France du début de l'époque moderne," Politix 32 (1995): 46-65. For the way these negotiations satisfying family and state interests contribute to his "theory of action," consult Pierre Bourdieu, Practical Reason: On the Theory of Action (Stanford: Stanford University Press, 1998; French ed. 1994), chap. 3, "Rethinking the State," 49.

^11. Formulated for a century this early juridical concept of a French "nation," part and parcel of evolving language, customs, and law, established the necessary base for all later extensions of the notion, such as that posited by Bell, The Cult of the Nation of France, chap. 1, who argues to the contrary that "the very idea of nation-building," rooted in language, law, and custom (the crux of nationalism), did not exist before the 1700s (22).

^12. Hanley, The Lit de Justice of the Kings of France, chap. 8, also 226-27, stresses negotiations between jurists and kings and repeated royal failure to practice "absolutism" as unevenly propagated in royal ideology; William Beik, Absolutism and Society in Seventeenth-Century France: State Power and Provincial Aristocracy (New York: Cambridge University Press, 1985), points to negotiations between center and periphery; and Roger Mettam, Power and Faction in Louis XIV's France (New York: Basil Blackwell, 1988), chap. 1, categorically denies "absolutist" rule, as does Nicholas Henshall, The Myth of Absolutism: Change and Continuity in Early Modern European Monarchy (New York: Longman Publishing, 1992).

^13. Ordinance 1539 [Villers-Cotterêts] (art. 111): François-André Isambert et al., eds., Recueil général des anciennes lois françaises depuis l'an 410 jusqu'à la révolution de 1789 (Paris: Belin-Le-Prieur, 1821-1833), 12:622-23, states: " . . . all legal decisions (arrestz) and all procedures pertaining either to the highest courts or to the lower or inferior ones . . . should be pronounced, registered, and delivered to the litigants in the French vernacular language [langage maternel françois] and in no other way." Drafted by a famous jurist, Guillaume Poyet (c. 1474-1568), this edict officially replaced Latin, already marginalized, as the language of law.

^14. Glendon, "Legal Concepts of Marriage and the Family," 103-4, argues that in western Europe state jurisdiction of marriage was assumed by default (as the Catholic Church lost control) and that legal notions on marriage did not really depart from Catholic tradition until the Enlightenment [1700s]. But that Anglo-American thesis (presumed valid for western Europe by other writers as well) does not fit the French case.

^15. Gilles Le Maistre (1499-1562), Décisions notables de feu messire Gilles Le Maistre, chevalier et premier président en la court de Parlement à Paris (Paris, 1566) [a rare tract in precarious condition], Treatise Five, chaps. 1-12, fol. 94r-107v. After a stunning career as an avocat at the Parisian bar, Le Maistre became avocat général (attorney general, 1540), président à mortier (judge, Parlement of Paris, 1550), and premier président (chief judge, Parlement of Paris, 1551). In his valuable lectures on law practice, John P. Dawson, The Oracles of the Law (Ann Arbor: University of Michigan Law School, 1968), chap. 4, detects the emergence of a "French way" sidestepping secrecy.

^16. See Susan Treggiari, Roman Marriage: Iusti coniuges from the Time of Cicero to the Time of Ulpian (New York: Oxford University Press, 1991), 83-124, 170-71, on this shift.

^17. John T. Noonan, "Marriage in the Middle Ages: Power to Choose," Viator 4 (1973): 419-34, discusses Gratian's innovative rubric on marriage (c. 1140). It was confirmed in Alexander III's papal decretal, Veniens ad nos (c. 1175) designating "words of consent" (present or future tense) and consummation for a proper marriage; see also Juliette M. Turlan, "Recherches sur le mariage dans la pratique coutumière (XIIe-XVIe siècles)," Revue historique de droit français et étranger 35 (1957): 477-528; and Adhémar Esmein, Le Mariage en droit canonique (Paris: Librairie du Recueil Sirey, 1929, 1935), 1:100-101. These "marriage promises" regulated by Canon law required no formal ritual, public pronouncement, paternal or parental consent; and the age of majority (taken from Roman Law) was fourteen for boys, twelve for girls (changed by French Customary law to twenty and seventeen).

^18. In France the legal disputes in ecclesiastical courts over vague "marriage promises" from 1455 to 1494 are discussed by Beatrice Gottlieb, "The Meaning of Clandestine Marriage," in Family and Sexuality in French History, ed. Robert Wheaton and Tamara K. Hareven (Philadelphia: University of Pennsylvania Press, 1980), 49-80.

^19. While many writers and reformers (such as Rabelais, Erasmus, and Luther) called for parental consent, Le Maistre proposed a civil law solution, not one merely suggested, or left to church ordinances (Catholic or Protestant).

^20. Judith Evans Grubbs, Law and Family in Late Antiquity: The Emperor Constantine's Marriage Legislation (New York: Oxford University Press, 1995), argues that Constantine decreed strict penalties for the crime of forcible abduction and marriage (raptus) in response to social demands, not Christian influence.

^21. See Le Maistre, Notable Decisions, Treatise Five, chap. 3, fol. 96v-98v, on the French rapt charge. Note "parental consent" includes father and mother (and/or tutors or curators). Long applied to clerical cases, this appeal procedure was adapted for use in marital affairs; consult Robert Génestal, Les Origines de l'appel comme d'abus (Paris: Presses Universitaires de France, 1950).

^22. Le Maistre, Notable Decisions, Treatise Five, chap. 3, fol. 96v-98v: arrêt 9 March 1541 (Françoise de Lizian and Pierre de Tinteniac [the couple]--René d'Orvaux (parental complaint against Pierre, the son), followed by Le Maistre's quote. For the arrêt of 1555, pronounced by Le Maistre and later reported by Papon, see note 35 below. In legal affairs married women used the natal family name.

^23. Julien Brodeau, La Vie de maistre Charles Du Molin, advocat au Parlement de Paris
... (Paris, 1654), "Avis de lecteur" (4 unnumbered pages); he speaks of arrêts "noticed by all the Arrestographes, ancient and modern, that have judged a very celebrated Question of law. . . ." (61-62).

^24. Neither spouse could alienate propres of the other, and 4/5 was reserved for legitimate successors. (See note 36 below on this French inheritance custom.) In general, see Philippe de Renusson (1632-1649), Traité de la communauté de biens, entre l'homme et la femme conjoints par mariage . . . (Paris, 1692).

^25. Jean de Coras (1513-1572), Arrest mémorable du Parlement de Toloze, contenant une histoire prodigieuse de nostre temps, . . . (Lyon, 1561), wrote a commentary on the Martin Guerre--Arnaud du Tilh decision (1560). The erudite Coras, a law professor, taught at universities in Toulouse, Angers, Orléans, Valence, and Paris, and also at Padua and Ferrara in Italy, before becoming a judge in the Parlement of Toulouse, where he was assassinated during the religious wars. On the imposture case, see the classic account of Natalie Zemon Davis, The Return of Martin Guerre (Cambridge: Harvard University Press, 1983).

^26. The task was accomplished in 1610 by the avocat Jacques Baron, who edited and translated the Latin work and also added "ordinances, edicts, and arrêts from the Parlement of Paris." See (Coras [and Baron]), Resolutions de droict, contenans cent questions notables de matières . . . traictées et décidées au Parlement de Tholose . . . (Paris, 1610).

^27. Jean de Coras, Des Mariages clandestinement, et irrévérement contracté par les enfans de famille, au deçeu, ou contre le gré, vouloir, & consentement de leurs pères et mères
... (Toulouse, 1557); and Coras, Arrest mémorable.

^28. Coras, Clandestine Marriages, 1-7 and 51. For edicts dated old style (o.s.), I provide new-style (n.s.) dating, which began January 1566; and for arrêts and books lacking the month, the year as printed is given.

^29. Coras, Arrest mémorable, lists clandestinity and rapt among crimes committed by the imposter.

^30. Jean Papon (1505-1590), Recueil d'arrests notables des courts souveraines de France . . . (Paris, 2d ed. 1565 [1st ed. not located]), fol. 1r-532r, earned repute for his consultations.

^31. Ibid., "Prologue of Jean Papon to the Reader" (12 unnumbered folios), noting "if [the decision is] pronounced in only one chamber, others sometimes do not follow it," so assembling all chambers solves that problem, which "the reader can see by looking at the title propre and noting decisions ‘alleged as law'"; see also the Epistre (8 unnumbered folios) on "interpretation of law."

^32. Ibid., Prologue: "reading the law" meant the texts (Roman law, Canon law, Feudal law, also Customary law redacted in 1510).

^33. Ibid., bk. 15 (fol. 336r-361v); see tit. 1, fol. 336r-340r, and the margin note on negative Canon law intervention, fol. 336v-337r. See also, bk. 19, quest. 1-2, arrêts 1-16, on the appeal procedure, appel comme d'abus.

^34. Ibid., bk. 15, quest. 3; also quest. 4, arrêt of 1553, Parlement of Toulouse (Jehan [son]Odet [father]), fol. 336v-337v (no surnames). Although he attempts to allege French decisions back to 1387, citations before the 1520s (few and weak) are not reliable.

^35. Ibid., bk. 15, quest. 12: Arrêt 1555 (parties not identified), pronounced by Le Maistre. Trying to reclaim the wife's dowry (dot) after the father's death, the couple cited Roman law to argue that since the father had received both of them in his house for fourteen years, he tacitly approved the marriage and therewith negated the rapt charge. Papon holds this French arrêt correctly ruled against the clandestine marriage even though it contradicted the medieval Roman law opinion of Bartolus and others, who held that a father was constrained to pay the dowry if the husband was worthy of the daughter and her house. To the contrary, Papon explains, in France today that Roman law precept applies only in cases where fathers are at fault (i.e., wrongly impede a child's marriage), not in those where daughters or sons are at fault, as in this case (fol. 351v-352r).

^36. Ibid., bk. 16, quest. 13, arrêt 1545, fol. 369v-370v: "In the Parlement of Paris one holds [a decision] for a perpetual maxim . . . ," when "the reasons are notable [and] written in some preceding (presupposé) arrêts . . . , as the above arrêts show." He explains how the "interpretation" given in notable decisions on inheritance in France bypasses Roman law precepts and confirms French ones; see bk. 16, quest. 14 and quest. 15, fol. 370r-371v; and he demonstrates this legal change by using the example of propres, fol. 461r-462r, and by citing French arrêts observing Customary law on propres [contrary to Roman law on inheritance], bk. 16, quest. 17-20, fol. 462r-466v.

^37. Ibid., bk. 15, fol. 336v-337r, on Canon law; and bk. 16 (fol. 364r-466v), fol. 364r, on Roman law not binding in France and the "spirit" over the letter ("formal and necessary law").

^38. Ibid., bk. 15, under quest. 3; and bk. 15, quest. 4, fol. 336v-337r, stating "the king by express Edict [1557] published and verified by an arrêt of the Parlement of Paris" intervened (giving precedent statutory form).

^39. These factors--the notable arrêts requiring parental consent given prior to 1557, the intense lobbying by jurists, and the admission that deliberations on the Edict of 1557 were lengthy (see note 40 below)--undermine the assertion that Henry II issued the Edict of 1557 because the pope delayed annulling the clandestine marriage of François de Montmorency (to whom the king wished to marry his illegitimate daughter) set forth in Ourliac and Malafosse, Histoire du droit privé, vol. 3, pt. 2, chap. 2, sec. 3, 204-5, and repeated by many historians, including Traer, Marriage and Family, 33, and André Burguière, "The Formation of the Couple," Journal of Family History 12 (1987): 39-53.

^40. Edict 1557 [o.s. 1556 February] (art. 1-5): Isambert, Recueil, 13:469-71. The preamble states that this applies to "enfans de famille" (legitimate issue) and "parents" includes "fathers and mothers"; art. 1 notes that deliberations took a "long time" and speaks of "public integrity" and "[public] utility"; art. 4 states the new provisions are not retroactive.

^41. Barnabé Le Vest (son, n.d.) published his father's notes, CCXXXVII Arrêts célèbres et mémorables du Parlement de Paris. Recueillis par M. Barnabé Le Vest . . . , publiés par Barnabé Le Vest, son fils, conseiller du roy,... avocat en la cour [de Parlement] (Paris, 1612). As Le Vest (son) tells readers, most of these decisions were "pronounced solemnly in Red Robes" in that Parlement; see "Avertissement . . . aux Lecteurs" (2 unnumbered pages). On rapt, see the arrêt 1554, no. 61, pp. 284-86 (26 March 1554, Catherine de Constard--Fleury Liguier [minor son]; fines and imprisonment until paid. He also cites an early clandestinity case punishing accomplices; arrêt 1535, no. 195, pp. 955-58 (3 June 1535, Nicolas d'Anjou [a minor, 15]--Catherine de Mareuil, widow of Guy de Clermont, married 15 December 1533), fines against the accomplices, her mother, the notaries who issued a marriage contract based on "promises" (paroles de présent), and the priest who married them. Le Vest (father, n.d.), avocat in the Parlement of Paris, conseiller (judge), maître des requêtes, also served as avocat for the queen mother, Catherine de Médicis.

^42. See Alain Tallon, La France et le Concile de Trente (1518-1563) (Rome: École Française de Rome, 1997), chap. 3, pts. 4-5, for debates and French complaints in 1563; and Hubert Jedin, Crisis and Closure at the Council of Trent (London: Sheed and Ward, 1967), 142-43, on the marriage decree Tametsi (1563).

^43. Charles Dumoulin (1500-1566), Conseil sur le faict du concile de Trente (Lyon, 1564), was revered for his knowledge of French Customary law and for his efforts to unify French laws; see Brodeau, La Vie de maistre Charles Du Molin.

^44. For Barnabé Brisson (c. 1530-1591), see Bibliothèque Nationale de France (hereafter BNF), Département des Manuscrits, Collection Dupuy 115, fol. 235r-236v. A well-known jurisconsult, Brisson was attorney-general (1573), then judge, Parlement of Paris (1580); earlier he wrote a Latin treatise on marriage law, De ritu nuptiarum (1564).

^45. Brisson's arguments and the arrêt of 11 December 1576 (Françoise Le Loup and Pierre Morel [the couple]--Jean Nagaret [tutor of Morel] and Morel's relatives) was published by Louis Servin, Arrest de la Cour de Parlement donné en l'audience de la Grand Chambre le 12 juillet 1601, suivant l'ordonnance du Roy Henry III faicte à Paris au mois de May 1579 . . . (Paris, 1602), 53-68; and 61-65 on the illegal church-court ruling and need for a "severe [French] law."

^46. Ordinance 1579 [Blois] (art. 40-44, 281); Isambert, Recueil, 14:391-92, 443.

^47. Ordinance 1561 (o.s. 1560 January) [Orléans] (art. 111): Isambert, Recueil, 14:91, where art. 111 prohibits surreptitious use of lettres de cachet "to sequester girls and marry them . . . against the wishes and without the consent of fathers, mothers and relatives, tutors or curators . . . "; judges directed to charge perpetrators and accomplices with rapt. Ordinance 1579 (art. 44 and 281), Isambert, Recueil, 14:391-92 and 443: see art. 44 on rapt de séduction and art. 281 on rapt [de violence] threatening nobles (chargeable in the Edict of 1561) who force a marriage without consent of parents with loss of nobility.

^48. Ordinance 1579 (art. 40-44, 281): Isambert, Recueil, 14:391-392, 443.

^49. For cases litigated, see Hanley, "Engendering the State," 15-21; also Constard--Liguier (1554) at note 41 above.

^50. The Marital Law Compact also drew under civil jurisdiction cases for adultery, separation, dissolution of marriage for impotence, and property issues (including dowries given to convents); for marital separation and adultery, see Sarah Hanley, "Social Sites of Political Practice in France: Law, Civil Rights, and the Separation of Powers in Domestic and State Government, 1500-1800," American Historical Review 102.1 (1997): 27-52.

^51. See the informative study of Jeffrey R. Watt, The Making of Modern Marriage: Matrimonial Control and the Rise of Sentiment in Neuchâtel (Ithaca: Cornell University Press, 1992), chap. 2. However, in this discussion of Protestant Neuchâtel, where the custom of "marriage promises" prevailed through the 1600s, Watt continues to use (as did contemporaries) the terms "promises" and "contracts" interchangeably (60-77). As a result, it is not made clear here that the source of the ongoing legal confusion still lay in the failure to distinguish betrothal from marriage and in the acceptance of parental consent even after unions-that is, the precise practices French civil law aimed to stop. For similar confusion caused by marriage promises in England, see notes 109-11 below.

^52. See Matteo Bandello (c. 1485-1561), Nouvelles, Novella 9 (c. 1550s); and Shakespeare (1564-1616), Romeo and Juliet (c. 1594-1595).

^53. See Pierre Boaistuau (c. 1520-1556), Histoires tragiques extraictes des oeuvres italiennes de Bandel, et mises en nostre langue Françoise, . . . [1559] (based on Bandello), ed. Richard Carr (Paris: Librairie Honore Champion, 1977), "Histoire troisième," 77, re "clan-destine marriage," 91 on punishments for rapt and disobedience, and for cases litigated, see Hanley, "Engendering the State," 15-21 (and those cited here).

^54. Servin (c. 1555-1616), Arrest de la Cour de Parlement (1602), 1-52: (Pierre Houlbronne [and Houlbronne parents]--Elisabeth Pallier), arrêt 12 July 1601. The arrêt also declared Elisabeth and Pierre free to marry others (a decision usually reserved for church courts). The avocat Servin practiced in the Parlement of Tours (1589), then the Parlement of Paris (1594).

^55. Edict 1580 [Edict of Melun] (art. 24-25): Isambert, Recueil, 14:464-77, a response to "remonstrances of the clergy" on appeals.

^56. Pierre Pithou (1539-1596), Traité des libertés de l'eglise gallicane (Paris, 1594), laid out "Gallican liberties" (83 articles) said (in art. 3) to be derived from "two fundamental [French] maxims": one being (art. 4) "Our kings are independant of the pope in temporal [matters]." This was reiterated by Antoine Loisel (1536-1617), Institutes coutumières [1607], ed. André Dupin and Édouard Laboulaye (Institutes coutumières d'Antoine Loysel) (Paris: Videcoq père et fils, 1846), vol. 1, maxim 8, and readily confirmed by jurists, including Bignon, Grandeur (note 82 below).

^57. In some Protestant states, such as England (notes 109-11 below), Neuchâtel (note 51 above), Scotland, some German states, and Geneva, the troublesome custom of accepting vague verbal "promises" to constitute a marriage continued; and in some states on the continent, where parental consent was written into new ecclesiastical ordinances, permission still could be obtained after the marriage. In France a special civil court (Chambre de l'Edit) staffed by judges of both cults was instituted for Protestant marriage cases; see Diane Mar-golf, "The Paris Chambre de l'Edit: Protestant, Catholic, and Royal Justice in Early Modern France," Ph.D. dissertation, Yale University, 1990.

^58. Jean Chenu (1559-1627), Cent notables et singulières questions de droict, décidées par arrests mémorables des cours souveraines de France . . . (Paris, 2nd ed., 1603 [1st ed. 1602 not located]). An avocat, Chenu was a well-known legal scholar.

^59. Ibid., quest. 8, 114-15.

^60. Ibid., quest. 12, 127-28.

^61. Ibid., quest. 8, 114-15.

^62. Ibid., quest. 13, 129-54: arrêt 27 December 1600 (Thomas Blondeau [minor]-Nicole Le Moine [major]--Jacqueline Chastelian [sic] [mother of Blondeau]; Nicole and mother Jacqueline (accomplice) charged with rapt; he also cited Houlbronne--Pallier (1601). Chenu and cohorts provide names of litigants (as do most authors henceforth).

^63. Ibid., quest. 11, 121-27: arrêt 16 October 1592 (Heleine Cymard [major 1591] and Jacques Le Coq [major]--Genevieve Le Duc [her mother]); Genevieve argued Jacques pressured Heleine to consent and rushed her to a notary (18 May) to make a marriage contract; parent sues, then appeals 6 July 1592; the marriage (regardless of majority age) ruled illegal; see also, quest. 8, 114-15.

^64. For one example of many, see Le Vest (son), CCXXXVII Arrêts célèbres (1612), note 41 above.

^65. Edict 1606 (art. 2 and 12): Isambert, Recueil, 15:304-5, and 307, on "complaints and remonstrances of the clergy."

^66. For example, Charles Fevret (1583-1661), Traitté de l'abus et du vrai sujet des appellations qualifées de nom d'abus . . . (Dijon, 1654), used "Jurisprudence of the Arrêts" to designate the whole system: notable arrêts, edicts, and the appeal procedure (appel comme d'abus); see also Furetière (n. 108 below).

^67. Correctness aside, the thrust of that term (commonly used) also was politically problematic, because it appeared to support Parlement's claim (since the early 1500s) to exercise co-legislative functions with the king and thus to undermine the contrary royal claim that kings alone enjoyed the legislative prerogative. On those conflicting claims, 1500s-1600s, see Hanley, The Lit de Justice of the Kings of France, especially 6-9, 11-14; and for contests in 1667 and 1699 negotiated but not solved, see Hanley, "The Transmission of Legal Knowledge and the Genesis of Civil Society in Early Modern France," Historians and Ideologues, ed. Anthony Grafton and J. H. M. Salmon (Rochester, N.Y.: University of Rochester Press, 2001), 74-75.

^68. Loisel, Institutes. The work (1607) was reprinted twice before Loisel's death (1617), eleven times more in enlarged editions from 1637 to the 1780s. Denying Canon law (vol. 1, maxim 8), Loisel also negates the letter of the Roman law: for example, he explains how the precept puissance paternelle was modified by French law (vol. 1, maxim 122).

^69. Loisel, Institutes, vol. 1, pp. xxxv-xxxviii.

^70. Le Vest (son), Arrêts célèbres (1612), "Dedication," fols. aii r-v; and "Avertissement" (2 unnumbered pages).

^71. Julien Brodeau (d. 1653), Recueil d'aucuns notables arrests donnez en la cour de Parlement de Paris. Pris des Memoires de feu Monsieur Me. Georges Louet, conseiller du Roy en icelle (Paris 1633), published six times, 1614-1650, before his death (1653), eight more times augmented by other jurists, 1655-1742. Brodeau built upon valuable notes of an eminent judge, Parlement of Paris, Georges Loüet (1540-1608), printed after Loüet's death by the jurisconsult, Gabriel Michel de la Rochemaillet (1561-1642) in 1610; and virtually all the Arrestographes, 1630s-1700s, cited Brodeau.

^72. Claude Le Prestre (n.d.), Questions notables de droict, decidees par plusieurs arrests de la cour de Parlement . . . de Paris (Paris, 1645). In the long treatise, Questions notables, Le Prestre divides sections into "Centuries" (each containing one hundred arrêts followed by a topical index); at each additional "Century," sections are repaginated. For clandestine marriage cases, see Second Centurie (1-251), chap. 6, 20-28. The shorter work attached, Traicté des mariages clandestins, is separately paginated (1-50).

^73. Le Prestre, Questions notables, Second Centurie, chap. 6, 25-28: arrêt 26 July 1603 (Anne d'Estang and Jean de Montalambert [deceased spouses]); the court granted the children (Jean and Louise) 250 livres a year for life from the inheritance diverted (pointing to a compromise often followed in later cases).

^74. Ordinance 1629 (Code Michaud) (art. 39-40 and 169): Isambert, Recueil, 16:234-35, 267, and 273-74. For the quote from the preface, see 16:224-25. Gaston d'Orléans, the king's only brother (see note 85 below), sat in the Royal Council when this ordinance was discussed (see preface, 225).

^75. Ordinance 1629 (art. 39-40, 169): Isambert, Recueil, 16:234-35, 267, 273-74.

^76. Ordinance 1629: Isambert, Recueil, 16:273-74. Art. 169 (quote, 273): " . . . we wish that all those who commit rapt and abduction of widows, sons, and daughters under the authority of fathers, mothers, tutors, and relatives; or [those who] attempt to seduce them in order to marry; and [those] who have aided and abetted such marriages, without the advice and consent of relatives, tutors, or others so charged, will be punished as violators of the laws and disturbers of public peace." When "[such] crimes can no longer be excused and hidden, . . . these enterprises will be stopped."

^77. Ibid., On "violators."

^78. Ibid., On rapt; in the interim couples may not be harbored either in other houses or in other regions; as admitted in passing, however, judicial discretion (within limits) pertains.

^79. If all direct heirs (from the "source") are ruled illegitimate, collateral relatives would inherit (as occurred in D'Estang--Montalambert, 1603); and if no collaterals remained, presumably the state could "confiscate" assets (as was the case for bastards, even those legitimated, if they left no heirs).

^80. For a later high-profile instance where collateral relatives sued, see Brun--Saulx-Tavannes (1732) in Hanley, "Engendering the State," 16-17.

^81. See Hanley, "Social Sites," figs. 1 and 2, and 37-39, for marital separation cases. Circulation of legal information also aided slaves brought to France who sued for freedom from the 1680s on; see Sue Peabody, "There Are No Slaves in France": The Political Culture of Race and Slavery in the Ancien Regime (New York: Oxford University Press, 1996).

^82. BNF, Collection Thoisy 418, Lettre de M. Séguier . . . à M. Bignon . . . à travailler à une ordonnance sur les mariages clandestins . . . avec la réponse . . . 1633 . . . ," fol. 242r-254v; and "Pensées de M. Bignon sur le mariage," fol. 255r-264r. Pierre Séguier (1588-1672), an elegant orator, was president, Parlement of Paris (1624), keeper of seals (1634), and chancellor (1635). Jérôme Bignon (1589-1656), attorney general (1625) and royal librarian (1642), wrote La Grandeur de nos roys et de leurs soveraine puissance (Paris, 1615), arguing royal prerogatives are superior to papal ones and citing an assembly of September 1510 limiting papal power (215).

^83. Fig. 1: Engraving, Abraham Bosse, Le Contrat de Mariage (1633), BNF, Cabinet des Estampes, C6943. The main scene (left) depicts the public nature of parental-familial accord as two sets of parents, or relatives (as tutors), negotiate for the couple a legal contract recorded by a notary. The secondary scene (right) suggests the personal nature of couple consent as the two (cast as grown-up versions of the younger children at play) court alone (their consent presumed witnessed by family accord) as they discuss (see the attached verse) male "empire" in the household.

^84. Mathieu Molé (1584-1656), Mémoires de Mathieu Molé, in Société de l'histoire de France, ed. Aimé Champollion-Figeac (Paris: J. Renouard et cie, 1855-1857), 2:227, and comments on the Ordinance of 1579, 2:225.

^85. On the Bourbon--Lorraine case (1634), see BNF, ms. fr. 2750, fol. 1r-245r: "Memoire de plusieurs mariages traictez par aucune Princes et seigneurs avec des estrangeres et ennemies sans l'adveu et consentement des Roys leurs souverains et des peines ordonnée contre ceux qui les ont contractez" (12 parts, 89 items). Since Louis [XIV] was not born until 1638 (after twenty-five years of marriage), hope for issue was dim in 1634 and Gaston the presumed successor. Gaston (b. 1608) had the king's consent (1626) when forced by Richelieu to marry his first wife, Marie de Bourbon-Montpensier (d. 1627). Present in the Royal Council when the Ordinance of 1629 was discussed (see note 74 above), Gaston was twenty-four in 1632; his comrade, Charles IV, duke of Lorraine, waged campaigns, off and on, against France.

^86. BNF, ms. fr. 2750 (opinion against the marriage): "Secular princes by laws and ordinances can make marriages to maintain peace in their states, and the church must confirm them [the marriages]." Orléans cannot marry "without the consent of the king, father of the people and administrator of the kingdom. . . ." At stake is not just the "ruin of a family" but
the ruin "of a great kingdom" (fol. 4r-5r).

^87. BNF, ms. fr. 2750 (opinion against): procuror general, Parlement of Paris (fol. 127r-v); Parlement of Paris, 24 March 1634, order for Charles, duke of Lorraine to appear on the rapt charge (fol. 134v-135r).

^88. BNF, ms. fr. 2750 (opinion against): French jurists, 4 January 1634 (fol. 144r-148v); Parlement's decision, arrêt 5 September 1634, and the king's lettres patents against Lorraine alleging "rapt and rebellion" (fol. 137r-142r).

^89. BNF, ms. fr. 2750 (opinion against): observations, Assembly of the Clergy, 16 June 1635 and 10 July 1635 (fol. 153r-189v). Question: whether marriages of princes of the blood, particularly a presumptive successor, can be valid without consent and against will of the incumbent king (fol. 154v); conclusions (fol. 210v-215r) and quotes (fol. 216v-218v).

^90. BNF, ms. fr. 2750 (opinion against): the church must confirm marriages touching "raison d'état" (fol. 9r-v).

^91. BNF, ms. fr. 2750 (opinion for the marriage): letters to cardinals, reputation besmirched (fol. 234r-236r); French "injustice" (fol. 233v-234r); alleging "violation of the rights of the Holy See [by the French] . . . and ruin of its authority" (fol. 234r-v).

^92. BNF, ms. fr. 2750 (opinion for): Trent, Edict 1579, Gallican church (fol. 220v-232r).

^93. BNF, ms. fr. 2750 (opinion for): marriage (with couple consent) is valid if celebrated before a priest and witnesses (fol. 240r-241r). Only after nine years of separation and Louis XIII's death was this marriage recognized in France through a "rehabilitation" accorded the couple (slipping around the edicts of 1629 and 1639), then an odd ceremony reenacting marital vows by royal consent (all orchestrated by Queen Regent Marie de Médicis for the minor king, Louis XIV).

^94. Declaration 1639 (art. 1-7): Isambert, Recueil, 16:520-24. No doubt Bignon and Séguier (see above note 82) contributed to this formulation. A royal déclaration amended, or clarified, prior edicts and ordinances.

^95. Declaration 1639 (art. 1-7): Isambert, Recueil, 16:520-24. This was published in Saint-Domingue through the Code Noir (1685, art. 10), but slaves were exempted from obtaining parental consent (it was said) because consent of the master sufficed.

^96. Declaration 1639 (preamble): Isambert, Recueil, 16:520-21.

^97. Le Prestre, Questions notables (1645), the advertisement (title page); and the Bosse engraving, La Galerie du Palais (c. 1640), BNF, Département des Estampes, B17771 (version with verse), fig. 2 here.

^98. For a full view of the Great Hall (Salle des pas perdus), see Bernard Sur, Histoire des avocats en France des origines à nos jours (Paris: Dalloz, 1998), 43.

^99. Fig. 2: Bosse, La Galerie, verse quoted.

^100. Le Prestre, Questions notables (1645), Second Centurie, chap. 6, 20-25; also Mariages, 3-13, 17-29. In the historical spectrum covered, Mariages (3-13)--Hebrews, Greeks, Romans, Christians--France stands out: "But, if ever a nation has forbidden clandestine marriages [successfully], it is the French [nation]. . . "; and Mariages, 17-18, against Trent (1563). He alerts readers to other suspicious "marks of clandestinity," such as lack of a marriage contract notarized, one person unequal in status, suspicion of prior concubinage, no marital banns posted; Questions notables, Second Centurie, chap. 6, 23-41.

^101. Le Prestre, Mariages, 17-18 (quote); for the term "civil society," see note 106 below.

^102.102. Ibid., 19-22, including "notorious," or "famous," arrêts of 1602 and 1605 nullifying clandestine marriages illegally enacted "against the Ordinance of 1579": that is, 3 August 1602 (Berthelemie de la Chesnaye--Hierosme de la Planche [for son]), charging Chesnaye with the crime of rapt; and 19 July 1605 (Gabriel Durand [for Marguerite Durand, daughter]--Charlotte Lamoignon [for Henry de Bullion, son]); also 15 May 1601 (Jean du Bois and Nicole Huet--Magdeleine Trimolot).

^103. Ibid., 19-22, "celebrated" arrêts given in the Grand Chambre, including 7 September 1600 (Sieur de Beauharnais and Jeanne Feal); 1607 (Countess de Chaligny--Sieur de Villebon); and 2 June 1609 (Dame Carré--Thibaut Desportes) "notorious in society." Also cited in several places are the famous precedents, Le Loup-Morel--Nagaret (1576) and Houlbronne--Pallier (1601); see Questions notables, Second Centurie, chap. 6, 24-25; First Centurie, chap. 53, 144-46; and Mariages, 19-22. On marriages "against the Ordinance of 1579 and the arrêts of the court" nullified, see Le Prestre, Questions notables, Second Centurie, chap. 6, 25-28: arrêt 16 October 1602 (Henry Joubert and Anne du Chastelet), marriage nullified, Henry banished for nine years. Arrêt 8 July 1605 (Robert Baudesson and Anne d'Innal [couple]--Baudesson [parents]), Robert forbidden to approach Anne afterward.

^104. Le Prestre, in Questions notables, marginal notes throughout; and in Mariages (at the end), "Extracts" (42-46) include Edicts of 1556, 1561 (art. 3), 1579 (art. 40-44), 1606 (art. 12), 1629 (art. 39), and 1639 (art. 1-7); and relevant arrêts, 1564 to 1642 (found in 11 unnumbered pages), as well as in another section, "Celebrated arrêts" (1-32).

^105. See Sarah Hanley, "The Monarchic State in Early Modern France: Marital Regime Government and Male Right," Politics, Ideology, and Law in Early Modern Europe, ed. Adrianna E. Bakos (Rochester, N.Y.: University of Rochester Press, 1995), 107-26.

^106. Le Prestre, Mariages, 1: "The effects of marriage [families] are . . . most admirable, since from it derives the source of civil society (société civil); it [marriage] is the foundation for families which compose Republics, and so [marriage] is the seed-bed (séminaire) for states (estats)." Although he invokes classical authority (alleging Cicero, Offices, 1-3), a reading of that very different Ciceronian passage (bk. 1, chap. 17) points to Le Prestre's ingenuity in refashioning the message to fit modern France.

^107. Declaration 1639: Isambert, Recueil, 16:520: (preamble) " . . . marriages are the seedbed (séminaire) for states (états), the source and the origin of civil society (société civile), and the foundation for families which compose republics. [From families] . . . come principles that serve to form . . . governing regulations [polices], . . . and . . . [in families] the natural reverence of children towards their parents is the [exemplary] bond for the legitimate obedience of subjects [in the state] towards their sovereign. . . ." Here, in addition, obligations of obedience are spelled out: wives obey husbands (in marriages), children the parents (in families), and subjects obey kings (in the state). Le Prestre may have been the source (compare with note 106). In Ourliac and Malafosse, Histoire du droit privé, 3:204-5, this passage is mistakenly thought to originate in an Edict of 1697.

^108. See Hanley, "The Transmission of Legal Knowledge," on the popular Dictionaire universel . . . (1690), composed from 1648 to 1680 by Antoine Furetière (1619-1688), who defined and added to the famous trio of legal systems--Roman, Canon, and Feudal law--this fourth French system just as eminent.

^109. [Factum]: "Conclusions civiles, pour la Dame de Grosvenor accusatrice. Contre Ludovic Fenwick, moine Anglois son Aumônier, Édouard Fenwick son frere, & leurs complices . . . en supposant un faux mariage" (1702), 1-17; quote, 17.

^110. [Factum]: "Conclusions civiles . . . Grosvenor . . . ," 1-17; summary of grounds printed at the end (16), including excerpts from the Ordinance 1579 (Blois), art. 42, on rapt of a minor (widow, twenty-five years) and art. 281, crime of rapt for abduction and forced marriage; also from the Ordinance 1629, art. 169 (the tough provision cast in angry tones discussed above, notes 76-79, renewing the rapt charge).

^111. Consult Lawrence Stone, Road to Divorce: England 1530-1987 (Oxford: Oxford University Press, 1992), chap. 4, on proliferation of clandestine marriages; scandals involving incest, bigamy, bastardy; squalid marriages in the Fleet; and corruption of the clergy; chap. 5 on the Hardwicke Marriage Act (1753) requiring banns, church nuptials by regular clergy, and parental consent. In short, says Stone, "marriage law . . . in practice in England . . . from the fourteenth to the nineteenth centuries was a mess" resulting in "moral and legal confusion," 135-36. R. B. Outhwaite, Clandestine Marriage in England, 1588-1850 (Rio Grande, Oh.: Hambledon Press, 1995), traces bills advanced in Parliament to outlaw clandestinity that failed up to 1753.

^112. For example, the phenomenon labeled "counterfeit culture" devised by women to stave off risk by appearing to follow the rules but actually subverting them; see Hanley, "Engendering the State," 15-21.

^113. See Hanley, The Social Sites of Political Practice in France (in progress). On the way events by the later decades of the 1600s influenced women's demands for a "separation of powers" in the household, a domestic precept on governance picked up and applied to the state during the French Revolution, see Hanley, "Social Sites"; and for separation cases from the 1770s to the 1790s, now rhetorically clothed in melodramatic literary wrappings, see Sarah Maza, Private Lives and Public Affairs: The Causes Célèbres of Prerevolutionary France (Berkeley: University of California Press, 1993).

Content in the History Cooperative database is intended for personal, noncommercial use only. You may not reproduce, publish, distribute, transmit, participate in the transfer or sale of, modify, create derivative works from, display, or in any way exploit the History Cooperative database in whole or in part without the written permission of the copyright holder.